Apartheid Litigation

Cases Decided Subsequent to Kiobel: Balintulo v. Daimler ag (apartheid Litigation) in 2013

United States views on international law [1] in relation to Cases Decided Subsequent to Kiobel: Balintulo v. Daimler ag (apartheid Litigation): On August 21, 2013, the U.S. Court of Appeals for the Second Circuit decided a case that had been held in abeyance pending the Supreme Court's decision in Kiobel, Balintulo et al. v. Daimler AG, Ford Motor Co., and IBM Corp., 727 F.3d 174 (2d. Cir. 2013). Defendants in the case sought a writ of mandamus from the court of appeals to the district court to resolve the ATS claims in their favor. Plaintiffs sought damages from the named corporate defendants for alleged aiding and abetting of violations of customary international law committed by the South African government during the apartheid era. The court of appeals denied the writ as unnecessary because the Kiobel decision, along with the opportunity to move for dismissal in the district court, would allow defendants to seek dismissal through a motion for judgment on the pleadings in the district court. The United States had submitted a statement of interest, as well as multiple amicus briefs at various stages in the long-running litigation. See this world legal encyclopedia (in relation to issues that took place in the year 2009) at 140-44; this world legal encyclopedia (in relation to issues that took place in the year 2008) at 236-38; and this world legal encyclopedia (in relation to issues that took place in the year 2005) at 400-11. For further background on the case, see this world legal encyclopedia (in relation to issues that took place in the year 2007) at 226-27 and this world legal encyclopedia (in relation to issues that took place in the year 2004) at 354-61. Excerpts follow from the opinion of the court of appeals (with footnotes and citations to the record omitted).

Some Aspects of Cases Decided Subsequent to Kiobel: Balintulo v. Daimler ag (apartheid Litigation)

As we have now made clear, Kiobel forecloses the plaintiffs' claims because the plaintiffs have failed to allege that any relevant conduct occurred in the United States. The plaintiffs resist this obvious impact of the Kiobel holding on their claims. The Supreme Court's decision, they argue, does not preclude suits under the ATS based on foreign conduct when the defendants are American nationals, or where the defendants' conduct affronts significant American interests identified by the plaintiffs. Curiously, this interpretation of Kiobel arrives at precisely the conclusion reached by Justice Breyer, who, writing for himself and three colleagues, only concurred in the judgment of the Court affirming our decision to dismiss all remaining claims brought under the ATS. See Kiobel, 133 S.Ct. at 1671 (Breyer, J., concurring). The plaintiffs' argument, however, seeks to evade the bright-line clarity of the Court's actual holding—clarity that ensures that the defendants can obtain their desired relief without resort to mandamus. We briefly highlight why the plaintiffs' arguments lack merit.

Developments

a. The Supreme Court's Kiobel decision, the plaintiffs assert, “adopted a new presumption that ATS claims must 'touch and concern' the United States with 'sufficient force' to state a cause of action.” The plaintiffs read the opinion of the Court as holding only that “mere corporate presence” in the United States is insufficient for a claim to “touch and concern” the United States, but that corporate citizenship in the United States is enough. Id. at 11 (“[I]nternational law violations committed by U.S. citizens on foreign soil 'touch and concern' U.S. territory with 'sufficient force' to displace the Kiobel presumption.”). Reaching a conclusion similar to that of Justice Breyer and the minority of the Supreme Court in Kiobel, the plaintiffs argue that whether the relevant conduct occurred abroad is simply one prong of a multi-factor test, and the ATS still reaches extraterritorial conduct when the defendant is an American national. Id. at 8–11. We disagree. The Supreme Court expressly held that claims under the ATS cannot be brought for violations of the law of nations occurring within the territory of a sovereign other than the United States. Kiobel, 133 S.Ct. at 1662, 1668– 69. The majority framed the question presented in these terms no fewer than three times; it repeated the same language, focusing solely on the location of the relevant “conduct” or “violation,” at least eight more times in other parts of its eight-page opinion; and it affirmed our judgment dismissing the plaintiffs' claims because “all the relevant conduct took place outside the United States,” id. at 1669. Lower courts are bound by that rule and they are without authority to “reinterpret” the Court's binding precedent in light of irrelevant factual distinctions, such as the citizenship of the defendants. See Agostini v. Felton, 521 U.S. 203, 237–38, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66–67, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Accordingly, if all the relevant conduct occurred abroad, that is simply the end of the matter under Kiobel.

Details

b. The plaintiffs also assert that “the Kiobel presumption is displaced here” because of the compelling American interests in supporting the struggle against apartheid in South Africa.

These case-specific policy arguments miss the mark. The canon against extraterritorial application is “a presumption about a statute's meaning.” Morrison, 130 S.Ct. at 2877 (emphasis supplied). Its “wisdom,” the Supreme Court has explained, is that, “[r]ather than guess anew in each case, we apply the presumption in all cases, preserving a stable background against which Congress can legislate with predictable effects.” Id. at 2881 (emphasis supplied). For that reason, the presumption against extraterritoriality applies to the statute, or at least the part of the ATS that “carries with it an opportunity to develop common law,” Sosa, 542 U.S. at 731 n. 19, 124 S.Ct. 2739, and “allows federal courts to recognize certain causes of action,” Kiobel, 133 S.Ct. at 1664. In order “to rebut the presumption, the ATS [i.e., the statute] would need to evince a clear indication of extraterritoriality.” Id. at 1665 (quotation marks omitted). Applying this approach in Kiobel, the Supreme Court held as a matter of statutory interpretation that the implicit authority to engage in common-law development under the ATS does not include the power to recognize causes of action based solely on conduct occurring within the territory of another sovereign. In all cases, therefore the ATS does not permit claims based on illegal conduct that occurred entirely in the territory of another sovereign. In other words, a commonlaw cause of action brought under the ATS cannot have extraterritorial reach simply because some judges, in some cases, conclude that it should.

Resources

Notes

1. Cases Decided Subsequent to Kiobel: Balintulo v. Daimler ag (apartheid Litigation) in the Digest of United States Practice in International Law