Aliens in the United States

Alien Tort Act Interpretation

A surprise ruling in the Second Circuit holds that corporations cannot be held liable under international law for violations of the Alien Tort Act.

Ever since the Supreme Court recognized juridical persons in 1886, these will-o-the-wisps have acquired many of the constitutional rights of natural persons–most recently, the First Amendment right to contribute money to the political candidates of their choice. But when it’s convenient, juridical persons also can disappear–and that’s exactly what happened in two remarkable appellate rulings that effectively ended corporate liability in the Second Circuit for violations of the Alien Torts Statute (ATS).

Enacted in 1789, the ATS authorizes a “civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” (28 U.S.C. § 1350.) The torts committed must be gross violations of human rights that include war crimes, genocide, slavery, trafficking, forced labor, piracy, and torture.

Modern ATS jurisprudence began 30 years ago in the Second Circuit with a case alleging torture by a Paraguayan security officer (Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)). Since the mid-1990s about 140 cases have been brought against corporate defendants, often for allegedly aiding and abetting human rights violations by foreign governments. Defendants have raised such issues as subject matter jurisdiction, forum non conveniens, extraterritoriality, customary international law, and comity between nations. But corporate civil liability was either presumed or never reached by the appellate courts before settlement or disposition on other grounds.

In 2010, however, the liability issue exploded in the Second Circuit, where nearly a third of all corporate Alien Torts Statute cases have been brought. As Marco B. Simons of EarthRights International in Washington, D.C., tells the story, Judge José A. Cabranes lit the fuse in December 2009 by issuing a briefing order on corporate liability in a case targeting companies that had done business in apartheid South Africa (Balintulo v. Daimler A.G., No. 09-2778-CV (argued January 11, 2010)).

“That set off the alarms,” says Simons, attorney of record in several Alien Torts Statute cases. “A flurry of briefs followed by the parties and by the plaintiff’s amici, who claimed the issue was outside the scope of an interlocutory appeal.” A ruling in Balintulo is still pending.

A Second Circuit panel that included Cabranes had heard oral arguments earlier in 2009 in two other Alien Torts Statute cases: Presbyterian Church of Sudan v. Talisman Energy, Inc. (582 F.3d 244 (2d Cir. 2009), cert denied 131 S. Ct. 122 (2010)) and Kiobel v. Royal Dutch Petroleum Co. (621 F.3d 111 (2d Cir. 2010)). Corporate liability had been raised by defendants only in Talisman. “Kiobel and Balintulo were both interlocutory appeals, so we believed the court had limited authority,” Simons continues.

But in September 2010 Cabranes blind-sided the parties in Kiobel, writing a majority opinion that rejected corporate liability sua sponte in the course of determining subject matter jurisdiction. “No corporation has ever been subject to any form of liability (whether civil, criminal, or otherwise) under the customary international law of human rights,” Cabranes asserted. “Thus, corporate liability has not attained a discernible, much less universal, acceptance among nations of the world in their relations inter se, and it cannot, as a result, form the basis of a suit under the ATS.” (621 F.3d at 148.)

In a passionate separate opinion, Judge Pierre N. Leval wrote, “Without any support in either the precedents or the scholarship of international law, the majority takes the position that corporations, and other juridical entities, are not subject to international law.” He added, “The new rule offers to unscrupulous businesses advantages of incorporation never before dreamed of. So long as they incorporate (or act in the form of a trust), businesses will now be free to trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despot’s political opponents, or engage in piracy–all without civil liability to victims.” (621 F.3d at 150.)

The majority opinion, Simons says, “shocked everyone involved in the case” and revealed “fault lines in the Second Circuit’s façade of collegiality.” The plaintiffs petitioned for rehearing en banc. “No other appellate court has ever ruled that corporations could not be sued under the ATS,” wrote plaintiffs attorney Paul L. Hoffman, a partner in the Venice firm of Schonbrun DeSimone Seplow Harris Hoffman & Harrison. “Indeed, ATS claims against corporations, and other juridical entities, have been a regular feature of ATS jurisprudence.”

Hoffman also was adamant that the court had overstepped its authority. “Rehearing is also appropriate to address how the panel reached the corporate liability issue, which was never raised, briefed, or argued in this case at any point, including this appeal,” he wrote. “No court has previously found the issue of the identity of ATS defendants to be an issue of subject matter jurisdiction.” He concluded: “If there is to be a judicially-created immunity for corporations from tort liability for complicity in even the most heinous human rights violations, let that sad day be ushered in by the full Court having considered all of the relevant facts and arguments.”

But on February 4 the Second Circuit, on a 5-5 split, denied rehearing in Kiobel–with separate opinions written by each of the three original panelists (2011 WL 338048). Chief Judge Dennis Jacobs, who had sided with Cabranes in the earlier majority opinion, made his policy concerns explicit. “I cannot think that there is some consensus among nations that American courts and lawyers have the power to bring to court transnational corporations of other countries, to inquire into their operations in third countries, to regulate them–and to beggar them by rendering their assets into compensatory damages, punitive damages, and (American) legal fees.”

Even the defense bar was taken aback. “The Jacobs concurrence to en banc denial was a public policy argument that seemed to buy right into Judge Leval’s contentions,” says Jonathan C. Drimmer, an authority on the ATS at Steptoe & Johnson in Washington, D.C. Hoffman characterized it as “the most amazing opinion I’ve read in my entire career.”

Within weeks of the ruling, another long-standing ATS case settled, despite a pre-Kiobel ruling by another Second Circuit panel permitting certain claims to proceed without directly addressing the question of corporate liability (Abdullahi v. Pfizer, 562 F.3d 163 (2d Cir. 2009)). “Plaintiffs had what they saw as a good case,” says Sarah A. Altschuller, an associate at Foley Hoag in Washington, D.C., who advises multinational corporations on risks related to the Alien Torts Statute. “But Kiobel forced their hand.”

Blogging in Opinio Juris, professor Julian Ku of Hofstra University law school in New York wrote, “The wave of ATS lawsuits against corporations is, at least for the moment, DEAD in the Second Circuit. And I wouldn’t feel good about Alien Torts Statute suits in other circuits either.”

But the plaintiffs bar is remarkably upbeat. Even under Kiobel, Hoffman says, plaintiffs could sue corporate officials for ATS violations, and sue corporations for various torts under state law and federal common law.

“Eventually, I’m confident Kiobel will be reversed. If you want to be a human rights lawyer, it’s got to take a lot more than this to throw you off course.”

Simons points out that a split on the recognition of corporate liability already exists between the Second and the Eleventh Circuits (Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1263 (11th Cir. 2009); and Romero v. Drummond Co., Inc., 552 F.3d 1303, 1309 (11th Cir. 2008)), and decisions are pending in three other cases in the Seventh, Ninth, and D.C. Circuits. “It’s likely that corporate liability under the ATS will reach the Supreme Court within the next few years,” he says.

When it does, Simons predicts, the issue could be embarrassing for the Court. “Corporations have personhood rights in elections, but they can’t be sued for violations of human rights law. A lawyer might be able to argue that,” he says, “but to a layperson it looks a little suspect.”

Select from the American legal Encyclopedia more information about the Alien Torts Statute.

I-94 and Refugees

A definition of I-94, in the context of refugee resettlement and non-emergency repatriation, may be provided here: USCIS document that records each alien’s arrival and departure from the U.S. It identifies the period of time for which the alien is admitted and the alien’s immigrant status.

Aliens

Aliens in the United States

Alien Tort Act Interpretation

I-94 and Refugees

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