United States: Alien Tort Case Developments: Fourth And Eleventh Circuits Apply Kiobel’s "Touch And Concern" Standard

Last Updated: August 1 2014
Article by Sarah A. Altschuller

In the last month, two federal appellate courts have issued decisions in cases filed against U.S.-based corporations pursuant to the Alien Tort Statute ("ATS"). Both courts applied the "touch and concern" standard established by the Supreme Court in its 2012 decision in Kiobel v. Royal Dutch Petroleum with one court finding that jurisdiction was proper and the other court finding that "there is no jurisdiction" because all relevant conduct took place outside the United States.

As previously discussed, in Kiobel, the Supreme Court held that the presumption against extraterritoriality applies to all cases filed pursuant to the ATS. This presumption may be overcome when "claims touch and concern the territory of the United States" with "sufficient force." The Supreme Court held that more than a "mere corporate presence" in the United States was necessary to displace the presumption.

The Fourth Circuit's Decision in Al Shimari v. CACI

In a decision issued in late June, the Fourth Circuit Court of Appeals held that the presumption against extraterritoriality did not apply to claims brought by Iraqi plaintiffs against a U.S. government contractor that provided certain interrogation-related services to the U.S. military in Iraq. The plaintiffs had filed suit under ATS alleging that they had been subject to torture and other mistreatment while held at Abu Ghraib prison.

The Fourth Circuit's decision represents the first time since the Supreme Court's decision that a federal appellate court has found that claims in an ATS case sufficiently "touch and concern" the United States so as to overcome the presumption against extraterritoriality. With this finding, the court held that the district court had erred in concluding that it lacked subject matter jurisdiction over the plaintiffs' ATS claims.

In its decision, the Fourth Circuit stated that "a fact-based analysis is required...to determine whether courts may exercise jurisdiction over certain ATS claims." The court observed that the Supreme Court had held that "claims" must touch and concern the United States, not the "alleged tortious conduct." Based on this observation, the court then stated that it must "consider a broader range of facts than the location where the plaintiffs actually sustained their injuries" including "the parties' identities and their relationship to the causes of action" in evaluating whether jurisdiction is appropriate.

Ultimately, in finding that the Al Shimari plaintiffs had pled sufficient facts to as to overcome the presumption, the court relied on the following factors concerning the defendant contractor, CACI Premier Technology, Inc.:

  • Contractor is a U.S. corporation;
  • The employees of contractor whose conduct is at issue in the case are U.S. citizens;
  • Contractor's contract was issued in the United States by the U.S. Department of Interior;
  • Contractor's employees were required to obtain security clearances from the U.S. Department of Defense; and
  • Plaintiffs alleged that managers of the contractor based in the United States approved, encouraged, and/or attempted to cover up the alleged misconduct in Iraq.

Notably, the Court also relied upon "the express intent of Congress, through the enactment of the Torture Victims Protection Act and 18 U.S.C. 2340A, to provide aliens access to United States courts and to hold citizens of the United States accountable for acts of torture committed abroad."

The Eleventh Circuit's Decision in In re Chiquita Brands International, Inc.

In a decision issued in late July, the Eleventh Circuit held that jurisdiction was not proper in a ATS case brought by Colombian plaintiffs against Chiquita Brands International ("Chiquita") alleging that the company knew, or should have known, that its material support for the United Self-Defense Forces of Colombia ("AUC"), a paramilitary organization, would lead to the death or torture of their family members.

Notably, in March 2007, Chiquita admitted that it had provided payments to the AUC, stating that it had done so in order to ensure the protection of Chiquita employees and banana plantations in Colombia. At the time of its admission, the company agreed to pay a $25 million fine for providing funds to an organization on the United States' list of terrorist organizations and to cooperate in an investigation by the U.S. Department of Justice. Since the company's admission, more than 4,000 Colombian plaintiffs have filed suit against the company pursuant to the ATS and the Torture Victim Protection Act.

In contrast to the Fourth Circuit's fact-based analysis, the Eleventh Circuit observed that "our ultimate disposition is not dependent on specificity of fact." Noting that the defendants in Kiobel were not U.S. corporations and that Chiquita is U.S.-based, the court stated that "the distinction between the corporations does not lead us to any indication of a congressional intent to make the [ATS] apply to extraterritorial torts." After stating that all relevant conduct at issue in the case took place outside the United States, the court stated simply "[t]here is no jurisdiction."

The court noted that past decisions have found that extraterritorial torture falls within the category of claims violating international law that are properly heard pursuant to the ATS, citing both Filartiga v. Pena-Irala (2d Cir. 1980) and the Fourth Circuit's decision in Al Shimari. The court found, however, that "this is by no means a unanimous conclusion of the circuits", citing the D.C. Circuit's pre-Kiobel decision in Saleh v. Titan Corp. (D.C. Cir. 2010). Ultimately, the Court stated that

we reiterate that the ATS does not apply extraterritorially... 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.

Notably, the Eleventh Circuit's decision prompted a vigorous dissent from Judge Martin in which she stated that plaintiffs had alleged facts sufficient to overcome the presumption against extraterritoriality. Specifically, she cited the fact that Chiquita is headquartered and incorporated within the territory of the United States. She also observed that plaintiffs

allege that Chiquita participated in a campaign of torture and murder in Colombia by reviewing, approving, and concealing a scheme of payments and weapons shipments to Colombian terrorist organizations, all from within their corporate offices in the territory of the United States. (emphasis added)

In so stating, she found that "plaintiffs seek relief in a United States court for violations of international law committed by United States citizens while on United States soil. Certainly, these extraterritorial claims 'touch and concern the territory of the United States' with great force."

Judge Martin's reliance on an allegation that key decisions regarding corporate conduct outside the United States were made in the United States adopts similar reasoning to the Fourth Circuit's decision in Al Shimari. In citing Al Shimari, Judge Martin sought to distinguish the allegations at issue in In re Chiquita from a situation in which plaintiffs are seeking to hold "an American company vicariously liable for the unauthorized actions of its subsidiaries overseas", citing the Second Circuit's post-Kiobel decision in Balintulo v. Daimler AG (2d Cir. 2013) in which the court found that plaintiffs had not displaced the presumption against extraterritoriality.

In reviewing these opinions, it is clear that Judge Martin is correct in observing that "[t]he Kiobel opinion offers little assistance about what kinds of domestic connections would be necessary to overcome the presumption against extraterritoriality." It is striking that the majority in In re Chiquita did not address Judge Martin's emphasis on the issue of where key decisions were made regarding extraterritorial conduct. That said, looking ahead, it would not be surprising if future courts look to Judge Martin's dissent in trying to address the uncertainties left by the Kiobel opinion. While some hoped that Kiobel would resolve many of the key jurisdictional questions raised by ATS claims, it seems likely that there will be much more litigation to come before greater clarity emerges as to the appropriate parameters of these cases.

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