A Legal Lohengrin Returns

By Mike Dorf

Today is the first Monday in October, or as we SCOTUS-watchers call it, Opening Day.  Last week I wrote a Verdict column and blog post about one of the cases up for today--Lozman v. City of Riviera Beach.  Here I'll note a few thoughts on the other case, the one with which the Term leads off: Kiobel v. Royal Dutch Petroleum.  The case was argued last year on the question of whether the Alien Tort Statute (ATS) authorizes lawsuits against corporate defendants but during the oral argument several Justices expressed skepticism about a different point: whether the ATS authorizes suits by foreign plaintiffs against foreign defendants for acts allegedly in violation of international law occurring outside the United States.

Rather than decide that broad question without first giving counsel the opportunity to address it, the Court sought supplemental briefing and argument on the following question: "Whether and under what circumstances the Alien Tort Statute ... allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States."  Thus re-framed, the Kiobel case has the potential to substantially redefine prevailing understandings about how open the U.S. courts are to claims under international law.

Readers unfamiliar with the case law that has developed under the ATS may find it surprising that a federal statute would be interpreted to authorize suit in a U.S. court brought by a foreign plaintiff against a foreign defendant alleging violations of international law outside of the U.S., but the ATS has been generally so understood at least since the Second Circuit's landmark decision in the Filartiga case in 1980.  Moreover, the Supreme Court's leading ATS decision--Sosa v. Alvarez-Machain in 2004--refers favorably to Filartiga.  Further, (most of) the relevant events in Sosa also took place outside of the U.S.  And in Sosa, as in Kiobel, the plaintiff was not an American citizen.  (Indeed, the ATS only authorizes suits by aliens.)  However, in Sosa, the U.S. and some U.S. citizens were defendants and alleged to have acted in concert with the non-U.S. defendants.

The Court's reformulated question in Kiobel makes no reference to the nationality of the defendant or to other possible connections a case may have to the U.S. By seeking reargument focusing on territory but not the parties, the Court seems to have indicated that it wants to stake out a maximalist position: No ATS coverage for events occurring on foreign soil regardless of the defendants' citizenship.  But one might think that there are intermediate possibilities. Perhaps the ATS ought not be construed to reach cases in which there is no U.S. involvement--cases like Kiobel and Filartiga--but still ought to apply to cases in which the defendant is a U.S. citizen or in which the U.S. or U.S. actors are otherwise involved.  (Suppose an alien sues a U.S. citizen alleged to have ordered a genocide in a foreign country.  A footnote in Sosa cites Kadic v. Karadzic for the proposition that the ATS has been construed to cover foreign genocide by a foreign defendant; the maximalist narrowing of the ATS would render it inapplicable even to a foreign genocide ordered by a U.S. defendant. ) One hopes that the "under what circumstances" portion of the Court's reformulated cert question provides room for consideration of non-territorial connections to the U.S.--if the Court is inclined to narrow the ATS.

Should it narrow the ATS at all?  Conventional statutory construction arguments would say no.  Filartiga has been well known for over thirty years, so if Congress thought that the courts had interpreted the ATS too broadly, it could have responded by narrowing the statute.  Nor does the Filartiga/Sosa interpretation of the ATS appear to contradict the text or original understanding of the ATS.  The text contains no territorial or party-based limit, stating broadly that the federal courts have jurisdiction over "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."

The original understanding of that language appears to be lost.  As Judge Henry Friendly famously wrote in a 1975 Second Circuit casethe ATS "is a kind of legal Lohengrin; although it has been with us since the first Judiciary Act, § 9, 1 Stat. 73, 77 (1789), no one seems to know whence it came."

But what if the Filartiga interpretation of the ATS is unconstitutional as vesting jurisdiction in the federal courts beyond what Article III permits?  Judge Friendly thought that the ATS's reference to the law of nations needed to be narrowly construed in order to keep the ATS within constitutional bounds.  Justice Alito asked a question during the first oral argument in Kiobel that suggests that he is thinking along the same lines.

In cases in which one party is an alien and the other is a U.S. citizen, there is no difficulty with federal jurisdiction, because such cases fall within the bounds of Article III's diversity jurisdiction.  But in alien-versus-alien cases, the only possible basis for federal court jurisdiction would be that a federal question is at issue.  Some such cases could involve the construction of a multilateral treaty to which the U.S. is a party, arguably bringing into play the treaty-based federal question jurisdiction.  Still, there will be other cases in which a foreign plaintiff sues a foreign defendant for acts committed on foreign sovereign territory allegedly in violation of customary international law.  In such circumstances, is there a disputed federal question?

Internationalists typically say yes.  They point to a famous statement in a 1900 Supreme Court case, The Paquete Habana.  There, the Court said: "International law is part of our law."  The orthodox reading of this statement holds that (some) principles of customary international law become federal law (absent contrary federal authority) simply in virtue of that status.  Under this view--which Justice Souter's majority opinion in Sosa appeared to endorse--there is no constitutional problem with federal jurisdiction in a case like Kiobel because the case arises under the laws of the United States, i.e., under customary international law that is part of federal law.

But Justice Scalia (joined by the late CJ Rehnquist and Justice Thomas) concurred separately in Sosa, and in doing so endorsed a contrarian view in the academic literature.  Under this contrarian view, customary international law is "general" law of the sort that the Court banished in the 1938 Erie Railroad v. Tompkins.   Accordingly, customary international law is not federal law for the contrarians, and therefore it cannot support federal question jurisdiction under Article III.

I am not fond of the contrarian view, but even if one accepts it, one still might think that some of international law is federal law--not because international law is inherently federal law but because some international law has been incorporated into federal law by reference.  The Sosa majority took the view that the ATS assumed that federal law incorporated a small number of international law norms into U.S. law: those that are specific, universal and obligatory.

Perhaps a more direct way to get to that result is to say that the ATS itself incorporated specific, universal and obligatory international law norms into U.S. law.  After all, Article I gives Congress the power to "define Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations."  One could understand the ATS's conferral of a right of action as an exercise of that power.

Nonetheless, I could imagine that those (conservative) Justices who take the contrarian view would respond to the foregoing point by noting that all of the Justices in Sosa said that the ATS only conferred jurisdiction; it did not confer substantive rights to sue.  To be sure, the Sosa majority opinion itself seems to contradict the jurisdiction-only view at some points in the opinion, but we could well imagine Justice Scalia et al saying that they're just following Sosa in reading the ATS as not substantively incorporating international law.  Thus, the revisionists could say that a federal statute could, in principle, incorporate international law, but that the ATS doesn't do so.  AND, the revisionists could go on, the federal courts lack authority on their own to convert international law norms into domestic federal common law.

Will five Justices go for that version of the contrarian view in Kiobel?  I think probably not, but much depends on whether Justice Kennedy perceives the case through an internationalist lens or a federalism lens.  As an internationalist who joined Justice Souter's opinon in Sosa, Justice Kennedy will be inclined to resist those of his conservative colleagues who want to keep foreign influences out of U.S. law.  But as a defender of state sovereignty, Justice Kennedy may be wary of what could be regarded as an expansion of the power of the federal courts, and thus the federal government.

Accordingly, it looks like the stakes in Kiobel are potentially very high.