Last week, the Fourth Circuit affirmed the dismissal of several Alien Tort Statute claims against Yusuf Ali, a former Colonel in the Somali National Army who served under the military dictatorship of Mohamed Siad Barre. The plaintiff, Farhan Warfaa, is a member of a clan persecuted by the Barre regime during the 1980s, and still resides in Somalia. Warfaa alleges that in 1987, Ali (and soldiers under Ali’s command) detained, interrogated, and repeatedly tortured him before shooting him and leaving him for dead.
Ali immigrated to Canada after the collapse of the Barre regime in 1990, but Canadian officials deported him two years later due to his involvement in human rights abuses. He eventually came to the United States and currently lives in Alexandria, Virginia. Warfaa sued Ali in the Eastern District of Virginia under the ATS, which gives district courts federal jurisdiction in “any civil action by an alien for a tort [that violates] the law of nations or a treaty of the United States.” Warfaa’s complaint alleges six violations of international law: 1) attempted extrajudicial killing; 2) torture; 3) cruel, inhuman, or degrading treatment; 4) arbitrary detention; 5) crimes against humanity; and 6) war crimes. Separately, Warfaa relies on the Torture Victim Protection Act as an additional jurisdictional basis for his two claims of attempted extrajudicial killing and torture.
The district court stayed Warfaa’s case pending the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co. In Kiobel, the Supreme Court held that the principles underlying the presumption against extraterritorial application of statutes constrain federal courts when they exercise jurisdiction under the ATS. Since the Kiobel plaintiffs were Nigerians who alleged international law violations committed outside U.S. territory by foreign corporations, their claims did not sufficiently “touch and concern” the U.S. to confer jurisdiction. Relying on Kiobel, the district court dismissed Warfaa’s ATS claims (but not his TVPA claims) because all of Ali’s alleged conduct occurred in Somalia.
A divided panel of the Fourth Circuit affirmed. Judge Steven Agee’s majority opinion distinguished Warfaa’s case from the Fourth Circuit’s 2014 decision in Al Shimari v. CACI, which permitted an ATS suit against CACI employees who allegedly tortured the plaintiffs in Iraq. Although the alleged torture in Al Shimari occurred overseas, the defendant was a U.S. corporation that contracted with DOD to perform interrogation services, its employees were U.S. citizens, and the torture was allegedly monitored and approved from CACI’s U.S.-based headquarters. In contrast, reasoned Judge Agee, the allegations in Warfaa’s complaint presented no significant U.S. connection satisfying the “touch and concern” standard from Kiobel. For Judge Agee, the fact that Ali later immigrated to the U.S. was immaterial, since his residency in Virginia began long after his alleged abuse of Warfaa in Somalia. None of Warfaa’s allegations involved U.S. citizens, the U.S. government, U.S. entities, or events in the U.S., so his claims fell “squarely within the ambit of Kiobel’s broad presumption against extraterritorial application of the ATS.”
Judge Roger Gregory dissented from the panel’s ATS holding. In his view, the fact that Warfaa’s case was premised on the principal liability of a natural person defendant distinguished it from Kiobel and subsequent circuit court decisions involving the aiding and abetting liability of corporate defendants. Additionally, Judge Gregory concluded that Warfaa’s residence in Virginia and his extensive military training in the U.S. during the 1980s satisfied Kiobel’s “touch and concern” standard. For Judge Gregory, the “atrocious” nature of Ali’s alleged conduct, his significant domestic contacts, and the impossibility of suing him outside the U.S. warranted jurisdiction under the ATS.
Warfaa highlights the difficulty of applying the “touch and concern” standard from Kiobel to cases involving defendants and alleged conduct that do not clearly fall on one side of the domestic-foreign divide. In an effort to resolve this ambiguity, the Second and Eleventh Circuits have imported a related “focus” test for statutes without extraterritorial application from Morrison v. National Australia Bank, a Supreme Court case involving U.S. securities law. Under Morrison’s “focus” test, the court determines whether the conduct that was “the focus of [Congress’] concern” when it enacted the statute at issue occurred inside or outside the United States. And in the case of the ATS, Congress’ focus was the conduct that violated the law of nations.
Critically, courts that have adopted Morrison’s “focus” test are likelier to rule in favor of U.S. corporations implicated in tortious conduct that occurred overseas. For these courts, the defendant’s corporate citizenship or U.S. presence is entirely (or nearly) irrelevant in determining ATS jurisdiction; the location of the defendant’s conduct is the dispositive factor. The lower courts’ use of Morrison’s “focus” test in ATS cases is no accident. The Kiobel majority cited to Morrison as the only authority for its statement that ATS claims must sufficiently touch and concern U.S. territory to confer jurisdiction. Additionally, Morrison’s explanation of the “focus” test is far more detailed and analytically precise than the Kiobel majority’s one-sentence announcement of the “touch and concern” standard.
However, the circuit courts are divided on the applicability of the “focus” test to the ATS context. The Fourth Circuit’s decision in Warfaa suggests that the key factor in determining ATS jurisdiction is the location of the alleged international law violation, but the majority’s opinion makes no mention of Morrison. Moreover, the Fourth Circuit’s decision in CACI can be read as implicitly rejecting the “focus” test due to the significant weight its analysis gives to the defendant’s U.S. contacts.
The Ninth Circuit explicitly rejected the “focus” test in 2014 after reversing a district court’s dismissal of an ATS suit in Doe v. Nestle. To support this conclusion, the Ninth Circuit noted that the Supreme Court did not itself adopt the “focus” test in Kiobel, and instead deliberately used the “touch and concern” phrase in its most critical passage. The Ninth Circuit further reasoned that since the “focus” test turns on Congress’ intent when it enacted a particular statute, it “cannot sensibly be applied” to federal common claims predicated on international legal norms.
The defendants in Nestle petitioned for certiorari, which the Supreme Court denied last month. For the time being, then, lower courts will continue to have substantial leeway in conducting the “touch and concern” analysis, adding to the uncertainty surrounding the various other questions—such as those relating to aiding and abetting and corporate liability—left open in Kiobel.