United States: Supreme Court Examines the Alien Tort Statute: Oral Argument in the Alvarez-Machain Cases

On March 30, 2004, the United States Supreme Court heard oral argument in two companion cases that raise fundamental questions about the modern meaning of a 1789 statute that has spawned dozens of cases charging individuals and major multinational corporations with complicity in human rights abuses around the globe.

While Sosa v. Alvarez-Machain (03-339) and United States v. Alvarez-Machain (03-485) involve claims against the United States and an individual Mexican national, the cases drew more than ten amicus curiae briefs from foreign governments, trade groups, human rights organizations, and legal academics urging the Court to consider implications far beyond the facts of the case. Defendants and their amici urged the Court to hold that 28 U.S.C. § 1350, known as the Alien Tort Claims Act or the Alien Tort Statute (the "ATS"), is jurisdictional only, and does not create a cause of action for torts "committed in violation of the law of nations or a treaty of the United States." Plaintiffs and their amici countered that modern litigation under the ATS, which was revived 25 years ago after long dormancy, has brought foreign war criminals to justice, afforded redress to victims and survivors, and is an important vehicle for meeting the international human rights obligations of the United States.

A number of ATS cases have been stayed pending resolution of the Alvarez-Machain cases. The Court’s decision, which will greatly affect this area of litigation, is expected by the end of the current term, in late June or early July.

The Alien Tort Statute

The ATS provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." It was enacted by the first Congress as part of the first Judiciary Act in 1789, and its legislative history is sparse. There had recently been incidents of assaults against foreign diplomats, in which a lack of effective legal remedies could have led to diplomatic confrontation. According to the Second Circuit, the "most learned exposition" of the statute’s original purposes suggests that the ATS was "motivated by a desire to insure that claims by an alien against U.S. citizens or for incidents occurring in the United States were litigated in federal court rather than state court, so as to prevent the states from mishandling such cases and creating international incidents." See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 104 n.10 (2d Cir. 2000). Two reported lower court cases were brought under the ATS during the decade following its enactment, but then the statute fell into disuse. As Justice Stevens observed at the Alvarez-Machain argument, it appears that diplomatic assaults subsequently became less common, and cases involving piracy and prizes of war—another major source of international friction in the 18th and 19th centuries—were generally brought under the admiralty jurisdiction. See, e.g., Bolchos v. Darrel, 3 F. Cas. 810 (D.S.C. 1795) (relying on the ATS in a prize case where there was some doubt as to admiralty jurisdiction).

In 1980, the statute took on new significance as a result of the Second Circuit’s decision in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). Filartiga held that the ATS permitted two Paraguayan nationals to sue a former Paraguayan official in federal district court for torture that had occurred in Paraguay, because torture violates the law of nations (that is, international law). The United States had filed an amicus brief in Filartiga urging the court to adopt this interpretation of the ATS, but noting that such cases should normally be dismissed for forum non conveniens if adequate remedies are available where the events occurred. See Mem. for the United States as Amicus Curiae in Filartiga v. Pena-Irala, reprinted in 19 I.L.M. 585, 606 n.48 (1980). As the Second Circuit noted, however, the defendant in Filartiga had fled justice in Paraguay and was residing in the U.S., and plaintiffs’ Paraguayan attorney had been arrested for attempting to pursue a criminal action in Paraguay. Filartiga, 630 F.2d at 878.

In the years since Filartiga, other similar cases have been brought against foreign public officials, alleging that those officials committed violations of international law such as war crimes or crimes against humanity. See, e.g., Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995). In more recent years, plaintiffs have also brought complaints against a broader range of defendants, and have expanded their theories of liability to include, for example, environmental pollution, see Flores v. S. Peru Copper Corp., 343 F.3d 140 (2d Cir. 2003), and aiding and abetting foreign police or militias in oppression or extra-judicial killings, see, e.g., In re South African Apartheid Litig., M.D.L. 1499 (S.D.N.Y. filed 2002) (aiding and abetting the South African apartheid government). While some of these cases have been dismissed, see Flores, others have not: the Ninth Circuit recently reversed a summary judgment in favor of the oil company Unocal and held that a trial was required to determine whether the company had aided and abetted human rights abuses by the Myanmar military in the vicinity of a Unocal-built pipeline in Myanmar. En banc review of the panel decision was granted, but the case has now been stayed pending disposition of the Alvarez-Machain cases. Doe v. Unocal Corp., 110 F. Supp. 2d 1294 (C.D. Cal. 2000), aff’d in part and rev’d in part, No. 00-56603, 2002 WL 31063976 (9th Cir. Sept. 18, 2002), petition for hearing en banc granted, 2003 WL 359787 (9th Cir. Feb. 14, 2003).

The Alvarez-Machain Cases

In 1985, an American DEA agent was kidnapped, tortured, and murdered in Guadalajara, Mexico. In 1990, a federal grand jury in Los Angeles indicted Dr. Humberto Alvarez-Machain on the charge that he had assisted in the torture and murder of the agent. A Deputy Administrator at the DEA then approved a plan to hire Mexican nationals to abduct Alvarez-Machain in Mexico and bring him to the United States to face charges. Pursuant to this plan, petitioner Sosa and others kidnapped Alvarez-Machain from his office and brought him to El Paso, Texas.

Mexico protested the abduction, and Alvarez-Machain moved to dismiss the criminal indictment against him, arguing that his abduction violated the extradition treaty between Mexico and the United States. The case eventually went to the Supreme Court, which held that the abduction had not violated the treaty, and that the manner of the arrest did not deprive the trial court of jurisdiction. See United States v. Alvarez-Machain, 504 U.S. 655, 669-70 (1992).

The case was remanded for trial, but the trial court directed acquittal after the United States presented its case. Alvarez-Machain returned to Mexico, and in 1993 filed a civil action in federal district court against the DEA agents and Mexican nationals involved in his abduction. Alvarez-Machain argued that the ATS provided jurisdiction and a cause of action because the defendants had violated international law by infringing Mexico’s sovereignty, by subjecting him to arbitrary arrest and detention, and by transporting him across an international border. The trial court substituted the United States for all of the individual defendants except for Sosa, who, it ruled, was not a DEA employee. The trial court ultimately entered summary judgment against Sosa, and awarded damages of $25,000.

Sosa and the United States appealed to the Ninth Circuit. The Ninth Circuit affirmed liability under the ATS, then granted en banc review, and the en banc court affirmed in part and reversed in part. The Ninth Circuit en banc panel held that Alvarez-Machain did not have standing to assert the infringement of Mexico’s sovereignty and that transborder abduction violated no international norm. It concluded, however, that his arrest and 24-hour detention within Mexico did violate international law, and that the United States was subject to suit notwithstanding the exception to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2680(k), for "claims arising in a foreign country."

The Supreme Court granted certiorari on three questions in Sosa v. Alvarez-Machain: whether the ATS creates a cause of action or is simply a grant of jurisdiction; whether it is limited to jus cogens international norms; and whether the arrest and detention in this case violated any international norm. The Court also granted certiorari on two questions in the related case of United States v. Alvarez-Machain: whether DEA agents have authority to make arrests in a foreign country; and whether the "foreign country" exception to the FTCA barred suit against the U.S.

The Briefs and Arguments Before the Supreme Court

Both Sosa and the United States devoted most of their briefing to the argument that the ATS is a purely jurisdictional statute that creates no cause of action. Applying Cort v. Ash and its progeny, they argued that a cause of action cannot be inferred from the ATS because it contains no "rights conferring language." They also argued that separation of powers concerns require a narrow construction of the statute, in order to prevent courts from interpreting international law in conflict with the views of the political branches and to the detriment of U.S. foreign policy. Since no statute provides a cause of action, and because the law of nations does not provide a civil cause of action to individuals, no cause of action exists for Alvarez-Machain’s claims on this view, and they should be barred.

In response, Alvarez-Machain argued that the ATS creates jurisdiction, and that his cause of action can be found in the common law, which was understood in 1789 to include the law of nations. Separation of powers concerns are unwarranted, according to Alvarez-Machain, because courts have set a high bar for actionable violations of international law, and have applied the act of state or political question doctrines to avoid intruding on the foreign policy prerogative of the political branches. Finally, he argued, if the ATS is thwarted, the United States will not be able to meet its obligation under international law to provide a remedy for grievous violations of international norms.

Both sides, and numerous amici curiae, also addressed the broader implications of the case. Numerous amici—including the governments of Australia, Switzerland and the United Kingdom, the European Community, trade groups, human rights organizations, and numerous law professors—submitted briefs in the case. Parties supporting Sosa argued that claims under the ATS have been proliferating in recent years, and that the risk of ATS litigation is chilling investment by U.S. companies in countries that have uneven human rights records. Foreign governments urged the Court to respect jurisdictional limitations recognized in international law and to consider the interests that other nations have in adjudicating human rights cases involving their nationals and events within their borders. Parties supporting Alvarez-Machain emphasized that courts have interpreted the ATS narrowly and respected the foreign policy prerogatives of the political branches, and that ATS cases have brought the United States into the forefront of human rights enforcement in the world.

At oral argument, a number of the Justices appeared to be seeking a narrow ground for deciding the case. Justice Stevens asked at the outset whether ruling that the DEA had authority under U.S. law to effect an arrest in a foreign country would dispose of the whole case, and the Deputy Solicitor General conceded that it would. Justice O’Connor indicated that the arrest and 24-hour detention of Alvarez-Machain might not rise to the level of an international law violation.

On the broader question of the modern meaning of the ATS, Justice Scalia expressed concern about the friction that ATS cases create between the federal courts and the Executive Branch over issues of foreign policy. However, several Justices were openly skeptical of the petitioners’ claim that the statute is purely jurisdictional. Justice O’Connor referred repeatedly to the "long history" of the statute, and observed that it was hard to ignore, especially since it would be easy for Congress to correct the situation if it disapproved of how the courts were proceeding. Justice Kennedy indicated that the use of the word "tort" in the 1789 statute appeared to refer to a common law cause of action. Justice Ginsburg noted that the legislative history of the Torture Victim Protection Act, enacted in 1992, referred to the ATS and said nothing questioning it.

Justice Breyer challenged petitioners’ argument that an ATS cause of action would give courts "massive" discretion to define the scope of claims brought under the statute, and said to the contrary that it was "very limited." If Congress has preempted the field, he said, "that’s out." Also off-limits would be claims that relied on international norms to which Congress had expressed hostility, and claims that the State Department had said presented a political question. He referred to the brief submitted on behalf of the European Community, which urged U.S. courts to defer to the jurisdiction of nations with a direct nexus to the case if adequate remedies were available there.

However, Justice Breyer also pressed respondent for a limiting principle that would avoid politically sensitive cases, referring specifically to the cases seeking damages for victims of South Africa’s apartheid regime from multinational corporations who allegedly aided and abetted the regime. He said that, in his view, the interest of South Africa’s democratically elected government in its truth and reconciliation process "has it all over compensating the victims," and asked for "principles of limitation" to distinguish that case. Respondent’s counsel referred to the act of state and political question doctrines, and the international law rule requiring exhaustion of local remedies.

Potential Ramifications

The Court’s ruling will likely have far-reaching effects on litigation under the ATS. If the Court accepts the invitation to rule broadly and holds that the ATS does not create a cause of action, this field of federal court litigation will be sharply limited unless plaintiffs can identify another source of a right to sue. If the Court holds that a cause of action is available, the recent pattern of ATS litigation against individuals and corporations seems likely to continue. Any direction from the Court on the scope and nature of rights under the ATS will be critical to the further development of the law in this area. If the Court elects to decide the case narrowly, reaching only the issue of whether Alvarez-Machain’s kidnapping violated international law, lower courts will continue to grapple with the many complex issues that ATS cases present.

Various business groups have also been lobbying Congress for an amendment to the ATS that would reduce the scope of liability under it, and the American Bar Association has created a task force to consider possible amendments to the statute. Many of the groups that filed amici briefs in the case on both sides are also likely to pursue Justice O’Connor’s suggestion that the issue be put before Congress. These efforts will also likely be affected by the Supreme Court’s decision in Alvarez-Machain.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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