Monday, March 5, 2012

Breaking News: Kiobel to be Re-Argued

SCOTUS blog just announced that Kiobel (see prior posts here) will be re-argued in June on the question of whether the Alien Tort Statute (ATS) allows for U.S. courts to hear cases involving violations of international law committed on foreign soil notwithstanding the statutory presumption against extraterritoriality.  This issue has been lurking in other ATS cases, but it was not squarely presented in the certiorari papers in Kiobel.    Apparently, in reviewing the cert petition in Rio Tinto v. Sarei (which arises out of abuses allegedly committed in Papua New Guinea, see our prior posts here), the Court took note of the issue, which is squarely presented in that case.  The Court has now ordered additional briefing in Kiobel on the question of:

Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.  

Needless-to-say, a ruling that the ATS applies only to conduct committed on U.S. soil would largely gut litigation under that Statute.  Indeed, cases involving U.S. defendants have been dismissed on various grounds, including the political question and state secrets doctrines.  A finding that the ATS does not "apply" to extraterritorial conduct also seems inconsistent with the Court's own pronouncement in Sosa v. Alvarez-Machain (prior posts here).  This opinion indicates that the ATS does not involve the application of U.S. law extraterritorially; the Court was quite clear that the ATS creates no cause of action.  Rather, the Court ruled, the ATS allows for the application of international law in a U.S. forum as  a function of U.S. common law.  So, the ATS authorizes adjudicative jurisdiction rather than prescriptive jurisdiction. 

To be sure, the ATS is silent on its geographic reach.  By contrast, the TVPA is more express in this regard; it applies to a defendant acting "under actual or apparent authority, or color of law, of any foreign nation."

The Kiobel plaintiffs are to file their brief by May 3; defendants' response is due June 4.  

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