No. IN THE OFFICE OF THE CLF-.P~K uprem¢ ourt of ttait b . tat s ESTHER KIOBEL, individually and on behalf of her late husband, DR. BARINEM KIOBEL, BISHOP AUGUSTINE NUMENE JOHN-MILLER, CHARLES BARIDORN WIWA, ISRAEL PYAKENE NWIDOR, KENDRICKS DORLE NWIKPO, ANTHONY B. KOTE-WITAH, VICTOR B. WIFA, DUMLE J. KUNENU, BENSON MAGNUS IKARI, LEGBARA TONY IDIGIMA, PlUS NWINEE, KPOBARI TUSIMA, individually and on behalf of his late father, CLEMENT TUSIMA, Petitioners, us. ROYAL DUTCH PETROLEUM CO., SHELL TRANSPORT AND TRADING COMPANY PLC, SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA, LTD., Respondents. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT PETITION FOR WRIT OF CERTIORARI CAREY R. D’AV~NO BERGER ~ MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 (215) 875-3000 [email protected]PAUL L. HOFFMAN Counsel of Record [email protected]ERWIN CHEMERINSKY ADRIENNE J. QUARRY VICTORIA DON SCHONBRUN DESIMONE SEPLOW HARRIS & HOFFMAN 723 Ocean Front Walk Venice, California 90291 (310) 396-0731 Attorneys for Petitioners Lawyers Brief Service ¯ Appellate Brief Printers ¯ (213) 613-1013 ° (949) 720-1510
Transcript
No.
IN THE OFFICE OF THE CLF-.P~K
uprem¢ ourt of ttait b . tat s
ESTHER KIOBEL, individually and on behalf of her late husband, DR.BARINEM KIOBEL, BISHOP AUGUSTINE NUMENE JOHN-MILLER,
CHARLES BARIDORN WIWA, ISRAEL PYAKENE NWIDOR,KENDRICKS DORLE NWIKPO, ANTHONY B. KOTE-WITAH,
VICTOR B. WIFA, DUMLE J. KUNENU, BENSON MAGNUS IKARI,LEGBARA TONY IDIGIMA, PlUS NWINEE, KPOBARI TUSIMA,individually and on behalf of his late father, CLEMENT TUSIMA,
Petitioners,us.
ROYAL DUTCH PETROLEUM CO., SHELL TRANSPORT ANDTRADING COMPANY PLC, SHELL PETROLEUM DEVELOPMENT
COMPANY OF NIGERIA, LTD.,Respondents.
ON PETITION FOR WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS
1. Whether the issue of corporate civil tortliability under the Alien Tort Statute ("ATS"), 28U.S.C. § 1350, is a merits question, as it has beentreated by all courts prior to the decision below, oran issue of subject matter jurisdiction, as the court ofappeals held for the first time.
2. Whether corporations are immune fromtort liability for violations of the law of nations suchas torture, extrajudicial executions or genocide, asthe court of appeals decisions provides, or ifcorporations may be sued in the same manner as anyother private party defendant under the ATS for suchegregious violations, as the Eleventh Circuit hasexplicitly held.
ii
PARTIES TO THE PROCEEDINGS
All parties or petitioners are :listed in thecaption and are individuals.
RULE 29.6 STATEMENT
None of the petitioners is a nongovernmentalcorporation. None of the petitioners has a parentcorporation or shares held by a publicly tradedcompany.
iii
TABLE OF CONTENTS
Pa~e(s)
Questions Presented ........................ i
Parties to the Proceedings .................. ii
Rule 29.6 Statement ....................... ii
Opinions Below ............................ 1
Jurisdiction .............................. 1
Statutory Provision Involved ................ 2
Statement of the Case ....................... 2
Reasons for Granting the Writ ..............10
I. Review is Necessary Because theMajority’s Decision Conflicts With ThisCourt’s Decisions Governing SubjectMatter Jurisdiction .................. 11
A. This Court’s Decisions Condemn"Drive-By Jurisdictional Rulings"Exemplified By The DecisionBelow ........................ 11
iv
Review Is Necessary BecauseThe Second Circuit’s DecisionConflicts With This Court’sCases and With Every OtherATS Appellate Decision Involvinga Corporate Defendant .........16
II. Review Is Necessary Because the CircuitCourts Are Split on the Issue of CorporateLiability Under the ATS and the Issue isOne of National Importance ...........18
III. Review is Necessary Because the DecisionBelow Directly Conflicts With This Court’sDecision in Sosa .................... 21
no The Decision Below Ignores thePlain Language, History andPurpose of the ATS ............26
Bo The Decision Below Rests on aFundamental Misinterpretation ofFootnote 20 ................... 31
Co This Court Decided That FederalCommon Law Provides the Causeof Action in ATS Cases and AdoptedJudge Edwards’ View ThatInternational Law Leaves to DomesticLaw the Methods by Which a Nation’sInternational Obligations areImplemented Domestically ...... 34
V
Do The Decision Below Ignored a MajorSource of International Law BecauseGeneral Principles of Law Provide ForCorporate Liability For SeriousHuman Rights Violations in allLegal Systems ................ 37
Conclusion .............................. 39
Appendix A ............................ A-1Opinion, Court of Appeals, Second Dist.Decided: September 17, 2010
Appendix B ............................ B-1Opinion, United States Dist. Court,Southern Dist. of New York,Filed September 23, 2006
Appendix C ............................ C-1Order Denying Rehearing en banc,Filed February 4, 2011
Appendix D ............................ D-1Order Denying Panel RehearingFiled February 4, 2011
Appendix E ............................. E-1Orders Denying Amici Curiae Motionsfor Leave to File Briefs in Support ofRehearings, Filed November 1, 2010
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TABLE OF AUTHORITIES
CASES
Page(s)
Abdullahi v. Pfizer, Inc.,562 F. 3d 163 (2d Cir. 2009) ............19
Aguinda v. Texaco, Inc.,303 F.3d 470 (2d Cir. 2002) ...........19
Air Courier Conference of Am. v. Am. PostalWorkers Union,498 U.S. 517 (1991) .................13
Aldana v. Del Monte Fresh Produce, N.A.,416 F.3d 1242 (llth Cir. 2005) .....18, 19
Alperin v. Vatican Bank,410 F.3d 532 (9th Cir. 2005) ..........19
Arbaugh v. Y. & H Corp.,546 U.S. 500 (2006) ... 11"12, 12, 13, 14, 16
Argentine Republic v. Amerada HessShipping Corp.,488.U.S. 428 (1989) .................26
Balintulo v. Daimler AG,No. 09"2778 "CV, 2009 U.S. App.LEXIS 29244 ........................ 8
vii
Bano v. Union Carbide Corp.,361 F.3d 696 (2d Cir. 2004) ...........19
Barcelona Traction, Light and Power Co.(Belgium v. Spain),1970 I.C.J. 3 (Feb 5) .................38
Beanal y. Freeport-McMoran, Inc.,197 F.3d 161 (5th Cir. 1999) ..........19
Bigio v. Coca-Cola Co,,239 F.3d 440 (2d Cir. 2000) ...........19
Bowoto v. Chevron Corp.,621 F.3d 1116 (9th Cir. 2011) ..........8
Carmichael v. United Technologies Corp.,835 F.2d 109 (5th Cir. 1988) ..........19
Sarei v. Rlo Tinto,Nos. 02-56256 & 02-56390 (9th Cir.,argued September 21, 2010) ..........20
X
Sarei v. Rio Tinto, PLC.,550 F.3d 822 (9th Cir. 2008) ..........19
Sinaltrainal y. Cola Co.,578 F.3d 1252 (11th Cir. 2009) .....18, 19
Sosa v. Alvarez-Machain,542 U.So 692 (2004) ...............passim
Steel Co. v. Citizens for a Better Env’t,523 U.So 83 (1998) ...............13, 15
Swint v. Chambers Cty. Comm’n,
514 U.S. 35 (1995) .................. 16
Tel-Oren v. Libyan Arab Republic,726 F.2d 774 (D.C. Cir. 1984) 4, 19, 31, 32,35
The Case of the Jurisdiction of the House o£Peers Between Thomas Skinner, Merchant,and the East-Inch’~ Company (1666),6 State Trials 710 (H.L.) ............. 29
The Paquete Habana,175 U.S. 677 (1900) ................. 24
United States v. Smith,18 U.S. 153 (1820) .................. 37
Wiwa v. Royal Dutch Petroleum Co.,226 F.3d 88 (2d Cir. 2000) ............19
1 William Blackstone, Commentaries,*474 (1765) ........................ 29
Jonathan A. Bush, The Prehistory of Corporationsand Conspiracy in International CriminalLa w: Wha t Nuremberg Really Said,109 Colum. L. Rev. 1094 (2009) ........ 22
Doug Cassel, Corporate Aiding and Abetting o£Human Rights Violations: Confusion inthe Courts,6 Nw. J. Human Rights., 304 (2008) ....38
W. Caste, "The Federal Courts’ProtectiveJurisdiction On Torts Committed in
Violation o£ the Law o£ Na tions,"18 Conn. L. Rev. 467 (1986) ...........28
xii
Kathryn Haigh, Extending the InternationalCriminal Court’s Jurisdiction toCorporations: OvercomingComplementarity Concerns,14 Austl. J. Hum. Rts., No. 1,199 (2008) ......................... 33
Int’l Comm’n of Jurists, Reportof the Expert Legal Panel onCorporate Complieity in InternationalCrimes (2008),http ://www.busine ss’humanrights.org/Up dates/Arehive/ICJPanelonComplicity ......................... 38
JennyS. Martinez, Antislavery Courts and theDawn o£IntornationM Human Rights Law,117 Yale L. J. 550 (2008) ............. 30
Jordan J. Paust, Nonstato Actor Participationin International Law and the Pretenseof Exclusion,51 Va. J. Int’l L. 977 (2011) ...........30
David Scheffer and Caroline Kaeb, The FiveLevels of CSR Compliance: TheResiliency of Corporate Liability underthe Alien Tort Statute and the Casefor a Counterattack Strategy inCompliance Theory,29 Berkeley J. Int’l L. 334 (2010) ......33
xiii
Howard M. Wasserman, The Demise ofDrive-by Jurisdictional Rulings,105 Nw. U. L. Rev. Colloquy 184 (2011)11, 13
Blank Page
Esther Kiobel, et al., respectfully petition for awrit of certiorari to review the judgment of theUnited States Court of Appeals for the SecondCircuit.
OPINIONS BELOW
The opinion of the court of appeals (App. A-l)is reported at 621 F.3d 111 (2d Cir. 2010). The courtof appeals’ orders denying Plaintiffs’ timely petitionfor rehearing and for rehearing en banc and theopinions filed with those orders (App. C and D) wereentered February 4, 2011. The opinion.of the districtcourt (App. B) is reported at 456 F. Supp. 2d 457(S.D.N.Y. 2006).
JURISDICTION
Petitioners seek review of a final decision ofthe court of appeals entered on September 17, 2010.A timely petition for rehearing and for rehearing enbsrw was denied on February 4, 2011. JusticeGinsburg granted Petitioners’ application for anextension of time to file this petition up to andincluding June 6, 2011. This Court’s jurisdictionrests on 28 U.S.C. § 1254(1).
2
STATUTORY PROVISION INVOLVED
The Alien Tort Statute CATS"), 28 U.S.C. §1350, provides:
The district courts shall have originaljurisdiction of any civil action by analien for a tort only, committed inviolation of the law of nations or atreaty of the United States.
STATEMENT OF THE CASE
1. This case was filed by twelve putativeclass representatives who alleged, on behalf ofthemselves and the putative class, Respondents’complicity in human rights violations committedagainst them in the Ogoni region of the Niger Deltain Nigeria between 1992 and 1995. These violationsincluded torture, extra-judicial executions, andcrimes against humanity.
The district court denied in part and grantedin part Respondents’ motion to dismiss Petitioners’claims in September 2006. App. B. However, thedistrict court certified the issue of whether certain ofPetitioners’ substantive claims were actionable underthis Court’s decision in Sosa v. Alvarez-Machain, 542U.S. 692 (2004), for an immediate interlocutoryappeal. App. B 21-23. The appeal was argued onJanuary 12, 2009.
At no point in the proceeding below didRespondents argue that corporations could not besued under the ATS for violations of the law ofnations. The district court did not address this issue,nor did it certify it for an interlocutory appeal. Id. Infact, respondents explicitly argued on appeal that theproper ATS defendant in this case was their Nigeriansubsidiary, Shell Petroleum Development Companyof Nigeria Ltd. As a result, the issue of corporateliability was not briefed or argued on appeal.1
2. On September 17, 2010, a sharplydivided panel of the court of appeals held thatcorporations could not be sued for torts in violation ofthe law of nations under the ATS. App. A’15. Themajority found that individual corporate executivescould be sued for such violations under the statute.App. A-80. The panel did not decide any of the issuescertified for appeal by the district court.
The majority found that footnote 20 in thisCourt’s Soza decision required that courts determinethe "scope of liability" and that the language infootnote 20 of the Soss decision created a newdistinction between individual private actors andcorporate private actors relevant to ATS liability
1 In contrast, the corporate liability issue was briefed
and argued in Presbyterian Church of Sudan v. TalismanEnorgy, Inc., 582 F.3d 244, 261 n.12 (2d Cir. 2009), where thesame panel declined to address the issue and exercised subjectmatter jurisdiction to decide the merits of the appeal.
4
where no such distinction had previously beenrecognized. App. A-28.
The majority then concluded that because the"scope of liability" under the ATS included the issueof whether corporate private actors could be suedunder international law, this issue was one of subjectmatter jurisdiction enabling the majority to decidethe issue despite the fact that it had been waived andit had never been presented, briefed, argued ordecided at any point in the nearly decade longlitigation below. App. A-25.
The majority opinion conducted a review ofinternational sources it believed revealed the absenceof an international norm of corporate liability. Id. at40-79. The majority paid particular attention tointernational criminal law and institutions and theabsence of an international consensus that criminalsanctions should be available against corporateentities, and not individual corporate officials, toredress corporate complicity in violations ofcustomary international law. Id. at 80.
The majority also placed great emphasis on thepurported absence of case law holding corporationsaccountable for violations of international humanrights norms as such. Id. at 14. It ignored JudgeEdwards’s observation in Tel Oren v. Libyan ArabRepublic, 726 F.2d 774, 778 (D.C. Cir. 1984),endorsed by this Court in Sosa, 542 U.S. at 730"31,that international law generally leaves to each
State’s domestic legal system the mechanism bywhich international obligations are enforced.
Unlike this Court’s Sos,~ analysis, the majoritydid not examine the language, history, or purpose ofthe ATS in coming to its unprecedented conclusionbecause it believed this Court had directed lowercourts in footriote 20 of the Sos,~ decision to applycustomary international law to the issue of corporateliability, even though the majority recognized thatfootnote 20 did not address this issue. Id. at 31.Because the majority interpreted footnote 20 torequire the international law analysis it followed, itdid not consider the implications of this Court’sholding that the cause of action recognized by theATS for violation of established international normswas based on federal common law.
Judge Leval vehemently dissented from themajority’s holding that corporations could not be suedunder the ATS. App. A’82. He observed that "[t]heposition of international law on whether civil liabilityshould be imposed for violations of its norms is thatinternational law takes no position and leaves thequestion to each nation to resolve .... the UnitedStates, through the ATS has opted to impose civilcompensatory liability on violators and draws nodistinctions between violators who are naturalpersons and corporations." App. A-87.
Judge Leval also disputed the majority’sinternational law analysis. He viewed the exclusionof corporations from the scope of international
6
criminal liability in the last sixty years as irrelevantto the scope of civil liability provided for in the ATS.Id. at 86-87, 118-120. He also challenged themajority’s assertion that corporations are not"subjects" of internationa[ law by pointing toNuremberg jurisprudence, especially the I.G. Farbenease, which recognized that corporations hadobligations under international law and were capableof committing international law violations. Id. at 94,149-150.
3. Petitioners sought rehearing andrehearing en bane on the grounds that they deservedan opportunity to brief and argue the issue ofcorporate liability for the first time in the case andthat the issue was a merits issue that had beenwaived by respondents and was not an issue ofsubject matt~er jurisdiction that could be decided suasponte.i Petitioners also sought on bane reviewbecause the majority opinion brought the SecondCircuit into direct conflict with this Court’s decisionin Sosa and with the Eleventh Circuit’s decisionsfinding that corporations could be sued under theATS, as well as the numerous ATS decisionsinvolving corporations in federal courts around thecountry, like this one, where none of the partiesthought this issue was substantial enough to raise.
The Second Circuit declined to hear the case enbane by a five to five vote. App. C-2. Judge Lynch,joined by Judges Peeler, Katzmann and Chin, stated,"[b]ecause I believe that this case presents asignificant issue and generates a circuit split, see
7
Romero v. Drummond Co., 552 F.3d 1303, 1315 (11thCir. 2008), and because I believe, essentially for thereasons stated by Judge Leval in his scholarly andeloquent concurring opinion [citation omitted], thatthe panel majority opinion is very likely incorrect asto whether corporations may be found civilly liableunder the Alien Tort Statute for violations of suchfundamental norms of international law as thoseprohibiting war crimes and crimes against humanity,I would rehear this case on bane." App. C 2.
Judge Katzmann also dissented specifically toemphasize that the majority’s reliance on hisconcurrence in Kh ulumani v. Barcla yNa tional Bank,504 F.3d 254, 270 (2d Cir. 2007), to support itsconclusion was erroneous and"that corporations, likenatural persons, may be liable for violations of thelaw of nations under the ATCA." App. C-5.
All three members of the panel continued theirheated debate in separate opinions filed in connectionwith the denial of the petition for rehearing. In anextraordinary opinion, Chief Judge Jacobs explainedthat his decisive vote to depart from precedent andexclude corporations from liability under the ATSwas based on policy grounds. Judge Jacobs stated hisview that American courts should not decide thekinds of issues involved in ATS cases allegingcorporate complicity in egregious human rightsviolations. App. D-6. He referred to a now-superseded objection by the South Africangovernment in another pending case to exemplify theproblem without acknowledging that the South
8
African government has dropped its objections to thatpending case.2 Judge Jacobs asserted that"[e]xamples of corporations in the atrocity businessare few in history," (App. D-8) and stated his beliefthat the ruling would have the "considerable benefitof avoiding abuse of the courts to extort settlements."App. D-9.3 He claimed that corporations should not
2 In September 2009, the Republic of South Africa
withdrew its objections to the now substantially narrowedactions pending against a small number of corporations for theircomplicity in serious human rights violations during theApartheid years. Balintulo v. Daimler AG, No. 09-2778"CV,2009 U.S. App. LEXIS 29244 (2d Cir. argued Jan. 2010). ThisCourt referred to the original complaints in these actions inSosa. 542 U.S. at 733 n.21. The issue of corporate liability wasbriefed and argued in the still pending BMintulo appeal.- TheUnited States argued as amicus curiae in Ba]i~tulo that theSecond Circuit lacked subject matter jurisdiction to decide thisissue. Brief for United States as Amicus Curiae SupportingAppellees, at 2, Bali~tulo ~ Daimler AG (2d Cir.)(No. 09-2778-CV), a~ail~ble athttp:l/www.saha.org.za/resources/docs/FINALGREEN_brief.pdf
3 Chief Judge Jacobs provides no indication of the basis
for his beliefs about either the level of corporate complicity inhuman rights violations or his claim that human rights lawyersbring ATS suits to extort settlements. In fact, there have beenonly a handful of settlements in corporate ATS cases in the lasttwo decades. There have been two trials in which defendantshave prevailed. See Bowoto v. Chevron Corp., 621 F. 3d 1116(9th Cir. 2011) and Romero ~. Drummond Corp., 552 F. 3d 1303,1315 (llth Cir. 2008). Plaintiffs have prevailed in one trial.Chowdhurry v. Worldtel Bangladesh Holding, Ltd., No. 08- Civ.1659-BMC), (E.D.N.Y. Aug. 6, 2009), ECF No. 48 ($1.5 milliontorture verdict against defendant holding company); see alsoLicea v. Curacao Drydock Co., 584 F. Supp. 2d 1355 (S.D. Fla.2008) (entering judgment against a corporation involved in labor
9
be subjected to ATS suits because "Americandiscovery in such cases uncovers corporate strategyand planning, diverts resources and executive time,provokes bad public relatior~s or boycotts, threatensexposure of dubious trade practices, and risks tradesecrets." App. D-9. Judge Jacobs’s sweeping policypronouncements did not acknowledge that sucharguments are properly addressed to Congress whichhas not acted to amend or repeal the ATS. Moreover,Judge Jacobs’s policy arguments contravene theunderlying purpose of the ATS to provide civil tortremedies for a small number of heinous violations ofinternational law.
Judge Cabranes filed a separate opinionseparating himself from Judge Jacob’s policy-orientedrationale insisting that the majority’s decision wasmandated by international law and this Court’sdecision in Sosa. App. D-24.
Petitioners filed a second petition for rehearinge_n banc because newly sworn-in Judge RaymondLohier did not participate in the on bane vote,although he was entitled to do so under the SecondCircuit’s Internal Operating Procedure Rule 35.1(b).This petition was denied on March 1, 2011. App. C-7.
trafficking).
10
REASONS FOR GRANTING THE WRIT
The decision below asserts a radical overhaulof all existing ATS jurisprudence by transformingvirtually every significant ATS issue into an issue ofsubject matter jurisdiction and by creating a blanketimmunity for corporations engaged or complicit inuniversally condemned human rights violations.The majority decision is the first to treat the issue ofcorporate liability as an issue of subject matterjurisdiction and the first to exempt corporations fromliability even for the most heinous human rightsviolations. The decision is contrary tc~ this Court’sdecision in So~a and has created a split in theCircuits, as the Eleventh Circuit has rejectedarguments that corporations are immune from suitunder the ATS~ thus creating uncertainty for humanrights victims and corporations alike concerning thefuture of ATS cases alleging serious human rightsviolations committed by corporate defendants.
In this era of globalization, ATS cases againstcorporations raise a host of issues of national andinternational importance. For the victims of humanrights violations such cases often provide the onlyopportunity to obtain any remedy for their sufferingand to deter future unlawful conduct. As the FirstCongress intended, these cases also inw~lve issues ofinternational law that require uniform treatment inthe federal courts. Review would enable this Court toresolve these conflicts and eliminate the uncertaintysurrounding these cases.
11
REVIEW IS NECESSARY BECAUSE THEMAJORIT~S DECISION CONFLICTSWITH THIS COURT’S DECISIONSGOVERNING SUBJECT MATTERJURISDICTION.
This Court’s Decisions Condemn"Drive-By Jurisdictional Rulings"Exemplified By The Decision Below.
The majority’s sua sponte holding that theissue of corporate liability is an issue of subjectmatter jurisdiction is in direct conflict with thisCourt’s holdings admonishing lower federal courtsagainst "drive-by jurisdictional rulings" that miss thecritical differences between "true jurisdictionalconditions and nonjurisdictional causes of action."Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237,1244 (2010) (citing Kontriek v. Ryan, 540 U.S. 443,456 (2004)).
The decision below is a paradigmatic"drive-by"jurisdictional ruling.4 This Court has directed retreatfrom ,what it has termed the "profligate" and "lessthan meticulous" use of the term "jurisdiction" tolabel components of a federal statute. Arbaugh v. Y& H Corp., 546 U.S. 500, 510-11 (2006) (finding TitleVII’s employer numerosity requirement is notjurisdictional). It has explicitly and actively
4 Howard M. Wasserman, The Demise of Drive-byJurisdictional Rulings, 105 Nw. U. L. Rev. Colloquy 184, 187(2011).
12
"encouraged federal courts and litigants to ’facilitate’clarity by using the term ’jurisdictional~ only when itis apposite." Reed Elsevier, 130 S. Ct. at 1244.
This Court has recognized the risk ofconflating jurisdictional and merits-based questions,and has made efforts to draw a sharp line betweenthe two. In Arbaug’h, "a threshold limitation on astatute’s scope shall count as jurisdictional" onlywhen "the Legislature clearly states" that it has thatcharacter. 546 U.S. at 515. On the contrary, "whenCongress does not rank a statutory limitation oncoverage as jurisdictional, courts should treat therestrictions as non’jurisdictional." Id. at 516.Applying this test, this Court concluded that therestriction on the coverage of Title VH of the CivilRights Act of 1964 to employers who have at leastfifteen employees is a constraint on "a plaintiffsclaim for relief, not a jurisdictional issue," since thefifteen-employee limitation appears in a provisionthat "’does not speak in jurisdictional terms or referin any way to the jurisdiction of the district courts.’"Id.
In Morrison v. NationalAustralia Bank, 130 S.Ct. 2869 (2010), this Court again drew a clear linebetween subject matter jurisdiction and merits-basedissues. In considering the extraterritorial reach of§10 (b) of the Securities and Exchange Act, JusticeSealia made clear that "to ask what conduct §10 (b)reaches is to ask what conduct §10 (b) prohibits,which is a merits question. Subject-matterjurisdiction, by contrast, ’refers to a tribunal’s power
13
to hear a case.’... It presents an issue quite separatefrom the question whether the allegations theplaintiffmakes entitle him to relief." Morrlson, 130 S.Ct. at 2877. In correcting the Second Circuit’s"threshold error," this Court made clear that thequestion of §10(b)’s extraterritorial reach did notraise a question of subject-matter jurisdiction and,therefore, could not be dismissed under Rule 12(b)(1).Id.
Post’Morrison, "any question of the reach offederal law--of whether Congress asserted regulatoryauthority to reach and prohibit the challengedconduct by the targeted actors must be deemed amerits issue.’’5 Arbaugh, Morri~o~, and numerousother cases decided by this Court make clear thatsubject matter jurisdiction does not turn on whethera defendant is subject to suit under a given cause ofaction.6
5 Wasserman, supra, note 4, at 189. See aIso Steel Co.
y. Citizens for a Better Env’t, 523 U.S. 83, 89-92 (1998) (scopeof statute goes to merits, and does not implicate court’s power toadjudicate the case).
~ See Air Courier Conference of Am. v. Am. PostalWorkers Union, 498 U.S. 517, 523 n.3 (1991) (question ofwhether Congress intended to allow a cause of action againstthe Postal Service is not a question of subject matterjurisdiction); Mr. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,429 U.S. 274, 277-79 (1977) (whether defendant is subject tosuit under 42 U.S.C. § 1983 is not a question of subject matterjurisdiction).
14
In cases such as Arbaugh, Morrison, and ReedElsevier, this Court has insisted that ]lower federalcourts distinguish between issues of subject matterjurisdiction and merits-based issues. This Courtunanimously rejected the Second Circuit’sjurisdictional categorization in Morri~on and ReedElsevier. Yet in this case the majority repeated thesame error by deciding the issue of corporate liabilityunder the ATS sua ~ponte here when this is clearlynot an issue of subject matter jurisdiction under thisCourt’s cases.
The issue of whether corporations can be suedunder the ATS is plainly a merits-based question, asthe same panel impiicitly recognized in Talisman,582 F. 3d at 261 n.12. The question concerns thereach of the statute, not the court’s adjudicatoryauthority to hear the case. In footnote 21, this Courttreated the issue of corporate liability as a merits-related issue and not a matter of subject matterjurisdiction when it discussed the merits-issue of casespecific deference in relation to cases brought againstcorporations for their complicity in apartheid. 542U.S. at 733 n.21. Thus, the court of appeals’ holdingthat there was no subject matter jurisdiction is alsoin direct conflict with this Court’s view in Soss. Themajority erred by analyzing the issue of corporateliability as a jurisdictional question, withoutconsidering this Court’s clear holdings on this issue.
The majority erroneously assumed thatbecause this Court in Sosa deemed the ATS to bejurisdictional in nature, 542 U.S. at 724, everything
15
associated with the statute, including its reach, is amatter of subject matter jurisdiction. App. A-25.Contrary to the majority’s flawed assumption, thejurisdictional nature of the ATS does not make everyATS issue a matter of subject matter jurisdiction. InSteel Co. v. Citizens for Better Environmnent., 523U.S. 83, 90 (1998), this Court explained that evenwhere a jurisdictional statute contains someelements of the cause of action, "it is unreasonable toread this as making all of the elements of the causeof action . . . jurisdictional, rather than as merelyspecifying the remedial powers of the court, viz., toenforce the violated requirement and to impose civilpenalties."
The ATS does not indicate that the identity ornature of the defendant, unlike the citizenship of theplaintiffs, is a jurisdictional requirement. Themajority acknowledged that the ATS "does not specifywho is liable" and leaves open the "question of thenature and scope of liability--who is liable for what."App. A" 18. Under this Court’s cases this is a merits-based decision and not an issue of subject matterjurisdiction.
The majority’s approach would transformnearly every issue in an ATS case into an issue ofsubject matter jurisdiction with serious consequencesfor the efficient processing of these cases at thedistrict court and appellate level. The appellatecourts would be required to resolve a wide range ofmerits-related issues in ATS cases because theyallegedly pertain to the "scope of liability" even where
16
these issues, as here, were never raised by the partiesor decided by district courts. This is precisely theresult that this Court has been determined to avoidin its recent cases.
So Review Is Necessary Because TheSecond Circuit’s Decision ConflictsWith This Court’s Cases and WithEvery Other ATS Appellate DecisionInvolving a Corporate Defendant.
This Court should grant certiorari to addressthe conflict between the court of appeals’ assertion ofsubject matter jurisdiction sua sponte over the issueof corporate liability under the ATS and this Court’sdecisions in Arbaugh, Morrison and Reed Elsevierprohibiting such jurisdictional mislabeling. Themajority ignored the limits on its authority, in aninterlocutory appeal, deciding an issue not previouslyaddressed in this litigation in order to restrict thescope of the ATS based on policy reasons.7 App. D’6(Jacobs, C.J.). Even if one agreed with the endssought to be achieved by the majority, this assertionof jurisdiction contradicts this Court’s subject matterjurisdiction jurisprudence.
Predictably, the majority’s subject matterjurisdiction decision also conflicts with virtually
7 See Swint v. Chambers Cry. Comm’n, 514 U.S. 35, 50-51 ( 1995) (confirming traditional rule that courts of appeals maynot exercise jurisdiction over issues not raised in theinterlocutory appeal).
17
every other ATS decision involving a corporatedefendantl The decision below is the first appellatedecision to consider the issue of corporate liability tobe an issue of subject matter jurisdiction, thuscreating a conflict with every other Circuit that hasconsidered a corporate ATS case. See Hereto Peop]e’sReparations Corp. v. Deutsche Bank, A.G., 370 F. 3d1192, 1195 (D.C. Cir. 2004).
If the majority’s reasoning is followed,virtually every significant issue in an ATS case istransformed into an issue of subject matterjurisdiction enabling any Circuit panel to renderdecisions on virtually any issue without prior notice,briefing, or decision in the district court. This canonly lead to ongoing uncertainty in the law for allparties, as this decision has engendered, and willinevitably result in more requests for this Court toresolve Circuit conflicts on an increasing number ofissues,s This Court should grant the petition toresolve this conflict and eliminate the uncertaintycreated by the decision below.
s Alternatively, given the majority’s disregard for thisCourt’s decisions, this Court would be justified in summarilyreversing the decision and remanding the appeal for decision onthe issues actually presented in the appeal. See City o£Newport, Ky. v. Iacobucci, 479 U.S. 92, 95-96 (1986) (summarilyreversing where the court of appeals misinterpreted this Court’sprecedent).
18
II. REVIEW IS NECESSARY BECAUSE THECIRCUIT COURTS ARE SPLIT ON THEISSUE OF CORPORATE LIABILITYUNDER THE ATS AND THE ISSUE IS ONEOF NATIONAL IMPORTANCE.
The decision below creates a direct conflictwith a line of decisions in the Eleventh Circuit, whichholds that corporations are subject to suit under theATS in the same manner as any other privatedefendant.9
In Romero, the Eleventh Circuit expresslyrejected the argument that the ATS does not permitsuits against corporations. 552 F.3d at 1315. There,the court reinforced its decision in A/dana, 416 F. 3dat 1253, that "[t]he text of the [ATS] provides noexpress exception for corporations.., and the law ofthis circuit is that this statute grants jurisdictionfrom complaints of torture against corporatedefendants." Id. In Sinaltrainal the EleventhCircuit once again stated categorically: "we have alsorecognized corporate defendants are subject toliability under the ATS .... " 578 F,3d at 1263.
Other circuits have, without exception,considered ATS suits against juridical entitieswithout questioning whether corporations could be
9 See Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1263
(llth Cir. 2009), Romero v. Drummond Co. 552 F.3d at 1315;Aldana v. Del Monte FreBh Produce, N.A., 416 F.3d 1242, 1253(11th Cir. 2005).
19
sued under the ATS or whether the identity or natureof a particular defendant raised an issue of subjectmatter jurisdiction.1° Until the sharply divideddecision below, the Second Circuit had routinelyconsidered ATS suits against corporations and otherjuridical entities.11 Indeed, in Abdullahi v. Pfizer,Inc., 562 F. 3d 163, 174 (2d Cir. 2009), the SecondCircuit stated that it understood Khulumanito hold"that the ATS conferred jurisdiction overmultinational corporations" that abetted apartheid inSouth Africa.
10 See, e.g., Herero People’s Reparations Corp., 370 F.3dat 1195; Mujics v. Occidental Petroleum Corp., 564 F.3d 1190(9th Cir. 2009); Sinsltrainsl, 578 F.3d at 1263; Ssrei v. Rio~’nto, PLC, 550 F.3d 822 (9th Cir. 2008); Alperin v. VaticanBank, 410 F.3d 532 (9th Cir. 2005); AIdsna, 416 F.3d at 1253;Deutsch v. Turner Corp., 324 F.3d 692 (9th Cir. 2003); Doe I v.UnocsI Corp., 395 F.3d 932 (9th Cir. 2002), vacated on othergrounds, 403 F.3d 708 (9th Cir. 2005); Besnsl v. Freeport-McMorsn, Inc., 197 F.3d 161 (5th Cir. 1999); Csrmichsel v.Unlted Technologies Corp., 835 F.2d 109 (5th Cir. 1988); Tel-Oren v. Libran Arab Republic, 726 F.2d 774 (D.C. Cir. 1984).
11 Khul~msni v. BsrclayNst’l. Bank, Ltd., 504 F.3d 254(2d Cir. 2007); Bsno v. Union Carbide Corp., 361 F.3d 696 (2dCir. 2004); Flores v. S. Peru Copper Corp., 414 F.3d 233 (2d Cir.2003); Aguinds v. Texaco, Inc., 303 F.3d 470 (2d Cir. 2002); Bigiov. Goes-Cola Co., 239 F.3d 440 (2d Cir. 2000); Wiws v. RoyalDutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000); Jots v. Texaco,Inc., 157 F.3d 153 (2d Cir. 1998).
2O
The issue of corporate liability under the ATSis now pending before the D.C.,12 Seventh,13 andNinth Circuits.14 In light of I~’obel, corporatedefendants are likely to raise this issue as a defensein every pending ATS case. Moreover, human rightsvictims are likely to initiate ATS claims againstindividual corporate officials out of an abundance ofcaution in case other appellate courts follow thedecision in this case.
Today corporations may be sued under theATS for their complicity in egregious internationalhuman rights violations in Miami or Atlanta, but notin New York or Hartford. This is contrary to thecongressional intent that the ATS ensure uniforminterpretation of international law in federal courtsin cases involving violations of the law of nations.Review by this Court is necessary to eliminate theuncertainty created by this conflict for bothcorporations and victims of human rights violations,especially when so many corporations could besubject to jurisdiction in almost any federal court.
’~ The issue is pending in Doe ~’. Exxon, No. 09-7125(D.C. Cir. argued January 25, 2011).
13 The issue is pending in Flomo v. Fix’estone, No. 10-
3675 (7th Cir. argued June 2, 2011). The Flomo case wasdismissed based upon tD’obeI on October 5, 2010, even thoughthe defendants had not raised the issue previously.
,4 The issue is pending in Sarei y. Rio Tlnto, Nos. 02-
56256 & 02-56390 (9th Cir. argued September 21, 2010) (enbanc).
21
More fundamentally, as this Court found inSos,~, the ATS was enacted so that the federal courtswould be empowered to enforce the law of nations bymeans of civil tort actions. Corporate tort liabilitywas part of the common law landscape in 1789 and isfirmly entrenched in all legal systems today. Thenotion that corporations might be excluded fromliability for their complicity in egregious humanrights violations is an extraordinary and radicalconcept. The court of appeals’ decision, if allowed tostand, severely undermines the ATS’s deterrence ofinternational law violations. It invites corporations toviolate universal international norms with impunity,and is thus in conflict with Sosa, Congress’ purposeand international law.
III. REVIEW IS NECESSARY BECAUSE THEDECISION BELOW DIRECTLY CONFLICTSWITH THIS COUR’FS DECISION IN ,.qO,_qA.
The majority’s decision conflicts with thisCourt’s decision in Soss in several respects.
First, the decision fails to consider thelanguage, history, and purpose of the ATS. ThisCourt grounded its Soss decision on an in-depthanalysis of the language, history, and purpose of thestatute. Sos,~, 542 U.S. at 712, 718, 724. The ATS’stext does not support the majority’s decision. TheATS, by its terms, does not exclude any category ofdefendant. Any natural or non-natural person iscapable of committing acts which constitute slavery,genocide, war crimes or other serious human rights
22
violations, or which aid or abet such human rightsviolations. This Court need not look further for proofof that than the examples of I. G. Farben in NaziGermany.15 But even if this Court were to lookbeyond the plain language of the statute, there isnothing in the ATS’s history or purpose, the commonlaw of the Eighteenth century, or international lawthat supports the majority’s decision. Had themajority carefully examined the sources this Courtlooked to in Sosa, it would have found no authority tosupport its extraordinary conclusion thatcorporations are excluded from the scope of the ATS.
Second, the majority misinterpreted footnote20 of Sosa. 542 U.S. at 732 n.20. Footnote 20 madeno broad holding about the law governing any issuein ATS cases other than the issue it specificallyaddressed: whethera particular law of nationsviolation required a direct showing of state action orif it could be committed by a private actor. Indeed,the language of footnote 20 affirms that corporationsare to be treated in the same manner as other privateactors for these purposes. The issue of corporateliability was not an issue in So,~ and nothing in thisCourt’s opinion even hints that the universe of ATSdefendants is limited in any way.
1~ See Jonathan A. Bush, The Prehistory of Corporations
and Conspiracy in International Criminal Law: WhatNuremberg Really Said, 109 Colum. L. Rev. 1094 (2009).Prominent Holocaust scholars sought to file an amicus briefoutlining the majority’s errors in analyzing Nurembergprecedents but the majority refused to allow their brief to befiled. App. E-8.
23
Third, the decision below conflicts with thisCourt’s fundamental decision in Sosa that the causeof action in ATS cases is based on federal commonlaw and that international law leaves the means bywhich international law obligations are to beimplemented within States to each domestic legalsystem. Sosa, 542 U.S. at 730"31. International lawsimply does not address whether the United States,or any other nation, should or should not holdcorporations accountable in civil tort law forviolations of the law of nations.l~
Moreover, federal common law has alwaysprovided for corporate tort liability. The FirstCongress exercised its constitutional authority to
1~ Judge Leval noted the inconsistency in the majority’sselective reading of international law. "Because internationallaw generally leaves all aspects of the issue of civil liability toindividual nations, there is no rule or custom of internationallaw to award civil damages in any form or context, either as tonatural persons or as to juridical ones. If the absence of auniversally accepted rule for the award of civil damages againsta corporation means that U.S. courts may not award damagesagainst a corporation, then the same absence of a universallyaccepted rule for the award of civil damages against naturalpersons must mean that U.S. courts may not award damagesagainst a natural person. But the majority opinion concedes (asit must) that U.S. courts may award damages against thecorporation’s employees when a corporation violates the rule ofnations. Furthermore, our circuit and others have for decadesawarded damages, and the Supreme Court in Sosa made clearthat a damage remedy does lie under the ATS. The majorityopinion is thus internally inconsistent and is logicallyincompatible with both Second Circuit and Supreme Courtauthority." App. A-88.
24
employ civil tort remedies to redress violations of thelaw of nations. Nothing in international law,whether in 1789 or now, immunizes corporations orprecludes Congress from authorizing tort liabilityagainst all persons, natural or non’natural, who areresponsible for law of nations violations.
Finally, even if the majority was correct thatcourts should look to international law to determinethe issue of corporate liability, it mistakenly limitedits analysis of international law to internationalcriminal law and failed to follow the So~a Court’sreliance on privately enforceable international normswhich routinely apply tort liability to non-naturalpersons, such as corporations (e.g., admiralty). 542U.S. at 732.17
The majority also failed to consider the factthat corporate tort liability is a general principle oflaw accepted in all legal systems. The majority’smisplaced focus on international criminal law andinstitutions prevented it from examining all relevantinternational law and it thus rendered a decision inconflict with this Court’s decision in So~a, establishedfederal common law principles, and international lawitself.
17 "And it was the law of nations in this sense that ourprecursors spoke about when the Court explained the status ofcoast fishing vessels in wartime grew from ancient usage amongcivilized nations, ’beginning centuries ago, and graduallyripening into a rule of international law .... " So~a, 542 U.S. at715 (citing The Paquete Habana, 175 U.S. 677, 686 (1900)). .
25
The ATS is explicitly a civil tort statuteenacted to provide broad remedies for violations ofthe law of nations at a time when the Founderssought to address a glaring weakness of federalauthority prior to the ratification of the Constitution.So~a, 542 U.S. at 713, 715-17. The majority’s viewthat the restricted jurisdiction of internationalcriminal tribunals limits the remedial scope of theATS is far’fetched and unjustified by anything in thestatute, So~a or international law.
Any decision that would immunize the Nazicorporations that enabled the Holocaust from tortliability for the most serious human rights violationsknown to humanity requires some extraordinaryexplanation. App. A- 82-83. No other appellate courthad ever questioned whether corporations could besubject to civil tort liability under the ATS for suchcrimes, yet the majority below placed theresponsibility for its unprecedented decision on amisreading of footnote 20 of this Court’sdecision. It now requires a decision from this Courtto make it clear that footnote 20 was meant toinclude corporations in the category of private actorssubject to ATS jurisdiction, and was not intended toprovide a blanket immunity to the future I.G.Farben’s of the world, nor to any other corporation,partnership, or other juridical person, complicit inthe handful of egregious human rights violations thisCourt has found actionable in Soss.
Resolving this issue is a matter of gravenational and international importance given the
26
involvement of private corporations in a wide rangeof military and security activities in which there havebeen reported serious human rights violations. Thedecision below provides immunity from tort liabilityto even the most egregious corporate human rightsviolator in conflict with this Nation’s internationalhuman rights obligations and with the centralpurpose of the ATS itself.
The policy concerns that led to thisextraordinary decision should be addressed toCongress. 542 U.S. at 726"27. The majority’s policy-based, results-driven exclusion of corporate liabilityhas no historical or legal basis. Allowing this decisionto stand undermines the separation of powers, therule of law and basic principles of justice for thevictims of egregious human rights violations.
The Decision Below Ignores the PlainLanguage, History and Purpose of theATS.
As this Court observed in Argentine Republicv. Amerada Hess Shipping Corp., 488 U.S. 428, 438(1989), "[The ATS] by its terms does not distinguishamong classes of defendants." The ATS explicitlylimits the category of plaintiffs to "aliens" but thereis no comparable limitation on the universe ofdefendants. Any natural person or juridical entityresponsible for the claimed tort committed inviolation of the law of nations may be sued based onthe plain language of the statute.
27
The majoriW’s analysis also reads the word"tort" out of the statute with its almost exclusiveemphasis on international criminal law andinstitutions. App. A-10-13. Far from limiting theATS to crimes or to criminal law, Congress expresslyprovided only for civil "tort" actions in the ATS, withno requirement that a violation of criminal law beclaimed or proved.
The controversial issues surrounding thedebates over corporate criminal liability simply donot exist in the context of civil tort liability. Byallowing for tort claims and tort remedies, Congresseschewed the limits the Second Circuit imposed onthe statute. See Sosa, 542 U.S. at 720.
In Sosa, this Court engaged in an extensiveanalysis of the history and purpose of the ATS todetermine its meaning and scope. The majority, indirect conflict with this Court’s Sosa methodology,ignores the history and purpose of the ATS ineliminating corporate liability under the statute. Themajority makes no attempt to glean what theFounders intended or how corporate tort liabilityrelates to the remedial purpose of the statute. Nordoes the majority explain why private individualsmay be held liable in tort for acts such as genocidebut corporations purposefully engaged in such grossviolations of international human rights may not. ~s
18 "The majority’s rule encompasses conduct that
indisputably does violate the law of nations, including, forexample, slavery, genocide, piracy and official torture (done
28
The historical sources cited by this Court inSoza support the consistent refusal to find anylimitation on the category of defendants in prior ATSdecisions. Indeed, the breadth of the ATS remedywas one of the First Congress’ answers to theinability of the Continental Congress to respond toviolations of treaties or the law of nations that mightescalate into war. So~a, 542 U.S. at 716. See W.Caste, The Federal Courts’Protective Jurisdiction OnTort~ Committed in Violation of the Law, of Nation~,18 Conn. L. Rev. 467, 490 (1985-1986).19 TheFounders would have been familiar with the use oftort remedies against corporations when the ATS wasenacted.2°
under the color of state law) - conduct for which the naturalperson tortfeasors will be held liable under the ATS, but forwhich the majority insist, a corporation that caused the conductto be done and profited from it, cannot be held liable. Nothing inSosa inferentially supports or even discusses this question."App. A-144.
19 The 1795 opinion of Attorney General Bradford, cited
in Sosa, 542 U.S. at 721, 1 Op. Att’y. Gen. 57 (1795), finds thata corporation was an appropriate plaintiff under the ATSwithout any suggestion that a corporation would not be anappropriate defendant or that the plaintiff corporation wouldhave to prove its capacity to sue under the law of nations ratherthan the common law. In 1907 the Attorney General found thatthe ATS allowed Mexican nationals to bring a tort claim againsta United States corporation. 26 Op. Att’y Gen. 250 (1907).
2o See The Case o£ the Jurisdiction of the House of Peers
Between Thomas Skinner, Merchant, and the East-IndiaCompany(1666), 6 State Trials 710, 711 (H.L.) (awarding tortdamages against the company for assault and other injuries);
29
There is nothing in the historical record tosupport the remarkable notion that the Foundersintended to exclude corporations from tort liability forviolations of the law of nations under the ATS.Corporate tort liability existed in 1789 and becameeven more established as time went on andcorporations proliferated. Corporate liability wasalways and remains a traditional feature of maritimelaw, which also forms part of the law of nations. SeeExxon Shipping Co. v. Baker, 554 U.S. 471, 472(2008). The majority ignores the well-establishedliability of corporations and other entities in the lawmerchant and maritime law, both integral parts ofthe law of nations at the time the ATS was enacted.
Indeed, in rem jurisdiction over ships forviolations of the law of nations has been a feature ofAmerican jurisprudence since the Nation’s founding.A ship is not a natural person, yet there is no doubtthat an ATS action would lie in tort against a shipused to commit a tort in violation of the law ofnations. These cases make clear that in remproceedings against ships often turned precisely onthe issue of how to ensure that there was a remedyfor a law of nations violation even when the courtlacked jurisdiction over the individuals actuallyresponsible.21
see also 1 William Blackstone, Commentaries,*474 (1765)(among the capacities of a corporation is "[t]o sue and be sued").
21 For a summary of the myriad cases involving private
actors and entities in litigation involving the law of nations seeJordan J. Paust, Nonstate Actor Participation in International
30
Indeed, the majority’s myopic view ofinternational law is plainly inconsistent with history.Virtually every type of natural and non’naturalperson has been subject to international law andremedies for the violation of international norms.For example, the history of international enforcementefforts against the slave trade include awards byinternational tribunals applying international lawnorms against a range of private actors, persons andentities, involved in violating international normsprohibiting the slave trade.22 The majority’s highlyselective analysis of international law simply doesnot address this history.
’ The purpose of the ATS was to provide forbroad remedies for law of nations violations againstany tortfeasor. The majority’s limitation on the typesof defendants who may be subjected to tort liabilityunder the ATS undermines this overriding purpose.There is no justification for such a limiLtation in thelanguage, history, or purpose of the ATS and themajority offers none.
Law and the Pretense of Exclusion, 51Va. J. of Int’l L. 977, 987n.38 (2011). Many of the legal historians this Court relied on inSosa attempted to bring this information to the Second Circuit’sattention at the petition for rehearing stage but their amicusbrief was rejected. App. E-6.
22 See, e.g., Jenny S. Martinez, Antislavery Courts andthe Dawn of InternationM Human Rights Law, 117 Yale L. J.550, 578, 582, 596 (2008).
31
The Decision Below Rests on a FundamentalMisinterpretation of Footnote 20.
The primary, if not exclusive, basis for themajority’s decision that an ATS plaintiff must find abasis in international law to sue. any particulardefendant is this Court’s footnote 20 in Sosa. Thedecision rests on a fundamental misinterpretation offootnote 20.23 As Judge Leval observed, "[liar fromimplying that natural persons and corporations aretreated differently for purposes of civil liability underATS, the intended inference of the footnote is thatthey are to be treated identically.’’24 App A- 117.
As the decision below acknowledges, the Sosacase had nothing to do with whether a particular typeof non-state actor could be sued under the ATS let
23 The full text of footnote 20: "A related consideration iswhether international law extends the scope of liability for aviolation of a given norm to the perpetrator being sued, if thedefendant is a private actor such as a corporation or individual."Compare Tel-Oren v. LibyanArab Republic, 726 F. 2d 774, 791-795 (D.C. Cir. 1984) (Edwards, J. eoneurring)(insuffieientconsensus in 1984 that torture by private actors violatesinternational law), with Ksdic v. Ksrsdzlc, 70 F. 3d 232, 239-241(2d Cir. 1995)(sufficient consensus in 1995 that genocide byprivate actors violates international law)."
~4 Judge Edwards’ concurrence in Tel-Oren reiterates
this point. Despite the status of the PLO as a defendant in thatcase, Judge Edwards treated legal persons and natural personsidentically for the purpose of determining liability under theATS. Tel-Oren, 726 F. 2d at 791-93.
32
alone with corporate liability.25 App. A-34 n31.Instead, footnote 20 addressed the much litigatedquestion of whether a particular law of nationsviolation required state action or not.26 It is wrong tosuggest that footnote 20.was intended to prescribethat international law supplies the answer to anyissue other than the specific issue this Court wasactually addressing. This is especially so given thisCourt’s clear decision in Sosa that the ATS providessubject matter jurisdiction for federal common lawcauses of action for certain universally condemnedinternational human rights violations.
Thus, review is necessary to address thisfundamental misinterpretation of footnote 20 in Sosa.There is no basis in any other ATS decision for themajority’s view that international law governs theissue of corporate liability under the ATS other thanthe question of whether a particular norm may beviolated by a private party be they an individual or acorporation. No other appellate decision hasexcluded corporations from all ATS liability. Noother ATS case has ever required the plaintiff toprove that a particular defendant was appropriate
25 In fact, this Court questioned whether a privatedefendant could be sued for arbitrary arrest in the absence ofstate action but obviously did not believe that this issue affectedthe Court’s subject matter jurisdiction. 542 U.S. at 737.
26 Footnote 20 addressed only direct liability claims andnot claims based on aiding and abetting liability. SeeKl~ulumsni, 504 F. 3d at 269 (Katzmann, J., concurring).
33
under international law as a matter of subject matterjurisdiction.
International law provides for some immunityfrom civil liability (e.g., diplomatic or head of stateimmunity) and other immunities or limitations onliability are codified by statute (e.g., foreign sovereignimmunity) or judicial decision (e.g., act of statedoctrine). However, corporations have no claim toany immunity under international law, even underthe international criminal law relied on by themajority below. No such immunity exists. Althoughcorporations have been excluded from the recently-created international criminal enforcementmechanisms such as the International CriminalCourt, many states have included corporations asappropriate defendants under the implementinglegislation passed to comply with their obligationsunder the Rome Statute.27 Even for criminaloffenses, the issue of corporate liability forinternational law violations is left to each State todecide. The plain language of the ATS indicates that
27 See Kathryn Haigh, Extending the International
Criminal Court’~ Jurisdiction to Corporations: OvercomingComplementarity Concerns, 14 Austl. J. Hum. Rts., No. 1, 199,204 n.7 (2008)(noting that Belgium, Italy and Switzerland haveimposed criminal liability on corporations in legislationimplementing the Rome Statute). See David Scheffer andCaroline Kaeb, The Five Levels of CSR Compliance: TheResiliency of Corporate Liability under the Alien Tort Statuteand the Case for a Counterattack Strategy in ComplianceTheory, 29 Berkeley J. Int’l L. 334 (2010).
34
first Congress did not exclude juridical entities, suchas corporations or ships, from the scope of tortliability.
This Court Decided That Federal CommonLaw Provides The Cause of Action in ATSCases and Adopted Judge Edwards’ ViewThat International Law Leaves To DomesticLaw The Methods By Which a Nation’sInternational Obligations Are ImplementedDomestically.
The Soza court held that the tort cause ofaction recognized under the ATS derives from federalcommon law, not international law. Sosa, 542 U.S. at720-21. The drafters of the ATS understood that therules of decision in ATS cases would be found incommon law. Id. at 714, 720-21, 724. The ATSrequires a violation of the law of nations to triggersubject matter jurisdiction, but federal common lawsupplies the rules governing the scope of tortremedies and the other rules governing ATSlitigation, he majority s reasomng ~s fundamentallyin conflict with this Court’s view of the ATS in So~.2~
In deciding that the ATS recognized federalcommon law causes of action, this Court adoptedJudge Edwards’ view in the long simmering debateinitiated in the Tel"O~’en case. Soss, 542 U.S. at 724,
2s The Eleventh Circuit applies federal common law
rules of liability in ATS cases. See, e.g., Romero, zupra; see Mso,Ki~ul~m~ni, 504 F.3d at 284, 286 (Hall, J., concurring).
35
731. In his opinion in Tel-Oren, 726 F.2d at 778(Edwards, J., concurring), Judge Edwardsemphasized that the structure of the internationallegal system is based on the general principle thateach State is responsible for implementing itsinternational law obligations in accordance with itsown domestic law and institutions. Id. at 798. TheFounders chose common law tort remedies to enforcethe law of nations. Sosa, 542 U.S. at 724.
In contrast, Judge Bork would have requiredATS plaintiffs to identify a cause of action fordamages in international law before an ATS claimwould be allowed to proceed. Te]-Oren, 726 F.2d at799. (Bork, J., concurring). International law doesnot ordinarily address domestic tort law remedies orprovide a uniform approach to the domesticenforcement of international norms, so Judge Bork’sview would have rendered the ATS a dead letter fromits passage, a position explicitly rejected by thisCourt in Sosa, 542 U.S. at 729"30.
Indeed, Judge Bork’s view would overruleFilartlga y. Pena-Irala, 630 F.2d 876 (2d Cir. 1980),a result in conflict with this Court’s approval ofFilartiga. 542 U.S. at 731. The majority’s reasoningwould also overturn Filartiga because there areequally no cases imposing civil liability on individualtorturers under international law, as such, for thesame reasons there are no such cases againstcorporations. International law leaves theimplementation of international human rights normsto the discretion of domestic legal systems.
36
This Court rejected Judge Bork’s view in Sosa,542 U.S. at 730-31, adopting Judge Edwards’ viewthat domestic law (e.g. federal common law) suppliesthe rules by which ATS claims would be litigated inU.S. courts, provided an ATS plaintiffbased his claimon a violation of the law of nations. Id at 714, 719,724.
The majority opinion in K~bbel rests on avariation of Judge Bork’s view looking tointernational law to find rules concerning properdefendants that international law leaves to thediscretion of each domestic legal system in contrast tothe Second Circuit’s prior case law. See Kadic, 70F.3d at 246 ("The law of nations generally does notcreate private causes of action").
It is up to each State to determine whether toprovide corporate tort liability for violations of thelaw of nations and to determine how such remediesare framed and applied. App. A-135, 138-140. TheFirst Congress did not restrict the universe of tortdefendants in the ATS. There is no apparent reasonwhy they would have done so given the remedialpurposes of the ATS.
37
The Decision Below Ignored a Major Source ofInternational Llaw Because GeneralPrinciples of Law Provide For CorporateLiability For Serious Human RightsViolations in All Legal Systems.
General principles of law common to all legalsystems are unquestionably a source of internationallaw for use in ATS litigation. Flores v. S. PeruCopper Corp., 414 F.3d 233, 250"51 (2d Cir. 2003)(citing the Statute of the International Court ofJustice art. 38(1)(c), June 26, 1945, 59 Stat 1055,1060, 33 U.N.T.S. 993). Such principles areestablished routinely by using a comparative lawapproach. This is essentially the methodologyemployed by this ’Court in cases such as UnitedStates v. Smitt~, 18 U.S. 153, 163"80 (1820), citedinSosa, 542 U.S. at 732. If all legal systems provide forcorporate civil liability in these circumstances,United States courts can be confident that they areapplying universally accepted principles and notidiosyncratic American tort principles.
Legal systems throughout the world recognizethat corporate legal responsibility accompanies theprivilege of corporate personhood. FirstNationa] CityBank v. Banco Para E1 Comerico Exterior De Cuba,462 U.S. 611 (1983). In First National Bank thisCourt held a corporation liable for the violation ofinternational law, precisely what the Second Circuit
38
said could not be done. 462 U.S. at 623, 633.29 Themajority’s decision to ignore these general principlesof law accepted in all legal systems undermines the"humanitarian objectives" of international law bypermitting corporations a "free pass to act incontravention of international law’s norms." App. A-93.
Corporate liability for serious harms is auniversal feature of the world’s legal systems andqualifies as a general principle of law.3° There is nolegal system which does not impose some form of tort,administrative or criminal penalties againstcorporations for the harms alleged in this case.
29 This Court apphed general principles of law to theissue of corporate veil-piercing in First National CityBank, 462U.S. at 628-29 n.20 (citing Barcelona Traction, Light and PowerCo. (Belgium v. Spain), 1970 I.C.J. 3, 38"39 (Feb.5)).
30 International Commission of Jurists, Report of theExpert Legal Panel on Corporate Complicity in InternationalCrimes (2008), available at http://www.business"humanrights.org/Updates/Arehive/I CJPanelonComplieity. Seealso Doug Cassel, Corporate Alding and Abetting of HumanRights Violations: Confusion in the Courts, 6 Nw. J. HumanRights., 304, 322 (2008).
39
CONCLUSION
For all these reasons, this Court should grantthe Petition on the questions presented.
Dated: June 6, 2011
Respectfully Submitted,
Carey R. D’AvinoBerger & Montague, P.C.1622 Locust StreetPhiladelphia, PA 19103(215) S75-3000
Paul L. HoffmanCoun,ze] oYRecordErwin ChemerinskyAdrienne J. QuarryVictoria DonSchonbrun DeSimoneSeplow Harris Hoffman& Harrison LLP723 Ocean Front WalkVenice,’ CA 90291(310) 396-0731
