it was clear that Paul Hoffman's oral argument would not go as planned.
As soon as the stocky Los Angeles litigator took his position at the polished lectern in the U.S. Supreme Court, the questions came raining down. And by the end of the session last February, those questions had dramatically shifted the issue in the case he had brought on behalf of petitioners. He might as well have thrown his notes to the floor.
Hoffman, a partner at Schonbrun DeSimone Seplow Hoffman & Harrison in Venice, thought he would be addressing whether corporations, not just individuals, can be liable under the centuries-old Alien Tort Statute (ATS). Its language 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." (28 U.S.C. § 1350)
Hoffman's clients, from the oil-rich Ogoni region of Nigeria, had sued Royal Dutch Shell and its local subsidiary in 2002 for allegedly helping government forces to commit human rights abuses during the 1990s. (Kiobel v. Royal Dutch Petroleum Co.
, No. 10-1491.)
But the first question from Justice Anthony M. Kennedy, the Court's most regular swing vote, made it clear that at least some of the justices had another issue in mind: Can the ATS even be applied to overseas conduct that has no link at all to the United States? Reading aloud from an amicus brief filed by Chevron Corp., Justice Kennedy said, "No other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection." He then asked Hoffman, "I was trying to find the best authority you have to refute that proposition, or are you going to say that that proposition is irrelevant?"
Taken aback, Hoffman responded, "Well, there - there are a couple of questions within that."
"And it involves your whole argument, of course," Kennedy said.
"It does," Hoffman said. "Yes."
The audience of Washington lawyers and spectators chuckled nervously. That's what they do when a justice has an advocate on the ropes.
Hoffman tried to steer the questioning back to corporate liability, with an assist from Justice Ruth Bader Ginsburg. But Chief Justice John G. Roberts and Justice Samuel A. Alito Jr. weren't finished. Both pressed Hoffman on the extraterritoriality issue, which had not been briefed.
Alito, one of the most incisive questioners on the bench, asked Hoffman if any other nation's courts would entertain a suit involving the same claims against Shell. "Is there a yes or no answer to that question or not?" he demanded.
Well, yes, Hoffman said: the United Kingdom and the Netherlands.
But that's where Shell is based, Justice Alito shot back. Was there "any other country other than the country of the citizenship of the defendants" where the case could be heard, he wanted to know.
Hoffman struggled to respond.
"I don't know if this precise case could be brought," he conceded.
Hoffman explains that he'd been prepared to answer questions from the justices on extraterritoriality, but he hadn't expected the issue to dominate oral argument. "I was surprised by how prominent the extraterritoriality questions were at the beginning, given the question before them," he says.
As someone who has litigated cases under the Alien Tort Statute for decades, Hoffman has played a major role in expanding use of the statute to redress human rights abuses. But in the convoluted Kiobel
litigation, the Supreme Court hearing earlier this year was not the first time a court has taken issue with what Hoffman thought was settled law.
In September 2010 the Second U.S. Circuit Court of Appeals, in an opinion by Judge JoséA. Cabranes, ignored the issues certified by the district court and affirmed dismissal of claims against the corporate defendants on grounds of subject matter jurisdiction - even though no other appellate court had ruled corporations could not be sued under the ATS. (Kiobel v. Royal Dutch Petroleum Co.
, 621 F.3d 111 (2d Cir. 2010).)
"It was the most remarkable thing that's happened to me," Hoffman says of the ruling. "It's completely ridiculous."
Others seem inclined to agree, including current U.S. Solicitor General Donald B. Verrilli Jr. In an amicus brief supporting the Kiobel
plaintiffs at the initial oral argument, Verrilli admonished the Second Circuit for reaching the corporate liability question. "As a prudential matter, the court of appeals should have declined to decide whether a corporation can be held liable in a suit under the ATS," he wrote.
Hoffman had sought rehearing en banc by the Second Circuit, arguing that it was necessary "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." But in a 5-5 split the panel denied his petition, with separate opinions written by each of the three original judges. (Kiobel
, 642 F.3d 379 (2d Cir. 2011).)
After that experience, Hoffman might have anticipated that Kiobel
would be no ordinary appeal. Indeed, just six days after Justice Kennedy blindsided him at oral argument, the Supreme Court ordered reargument - once again on an issue that was not briefed earlier: "Whether and under what circumstances the [ATS] ... 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."
The oral argument, set for the first day of the Court's fall term, will be Hoffman's sixth appearance in that venue and the eighth for Kathleen M. Sullivan, Shell's counsel and a partner in the New York office of Quinn Emanuel Urquhart & Sullivan.
Sullivan - former dean of Stanford Law School - has declined to comment about the case, citing her client's wishes. But in her supplemental brief for respondents, she argues that Congress enacted the ATS to avoid "the prospect that international law violations committed on U.S. soil
might prompt international conflict," perhaps even war. "Nothing in the ATS's text, structure or history contemplates extending it to a case like this one," Sullivan stated.
The stakes could not be higher for the viability of a whole strand of international human rights litigation brought under the statute. In the most extreme outcome, the Court could hold that plaintiffs cannot sue for any conduct occurring outside the United States - whether the defendant is a corporation or not. "That would gut the ATS," says Marco Simons, an attorney who handles ATS cases for EarthRights International in Washington, D.C.
For most of its history,
the Alien Tort Statute has been largely moribund. Enacted by Congress in 1789, it was intended as a means to remedy international wrongs for which other nations might hold the United States responsible. Early examples from the 19th century included piracy committed on the high seas, assaults on foreign diplomats, and violations of safe conduct.
Then a case brought in 1979 by New York's Center for Constitutional Rights breathed new life into the ATS as a tool for human rights lawyers.
Dr. Joel Filartiga, a longtime critic of Paraguay's Stroessner dictatorship, alleged that the former inspector general of the police there had kidnapped his son and tortured him to death in Peru. At the time the suit was filed, both Filartiga and the police inspector were living in the United States.
The trial court dismissed the case on jurisdictional grounds. But on appeal the Second Circuit stated, "Construing this rarely invoked provision, we hold that deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties." The opinion recognized, "for purposes of civil liability, the torturer has become - like the pirate and slave trader before him - hostis humani generis
, an enemy of all mankind."
The court concluded with words that surely were a clarion call to human rights advocates: "Our holding today, giving effect to a jurisdictional provision enacted by our First Congress, is a small but important step in the fulfillment of the ageless dream to free all people from brutal violence." (Filartiga v. Peña-Irala
, 630 F.2d 876, 878, 890 (2d Cir. 1980).)
Kristin L. Myles, a partner at Munger, Tolles & Olson in San Francisco who has defended ATS cases since 1996, says Filartiga
was the result of "an ambitious effort" by human rights lawyers to find a way to extend U.S. law internationally. "It is viewed as a seminal decision by human rights advocates," Myles says. But she adds that it's "not set in stone" because the decision wasn't appealed to the U.S. Supreme Court.
temporarily set a standard for the type of conduct that would fall within the scope of the ATS. The ruling also caught the attention of Hoffman, who was teaching human rights law at Southwestern University School of Law in Los Angeles. "It was very inspirational," he says.
A quarter century later Filartiga
lurked in the background when the U.S. Supreme Court finally took up an ATS case. Hoffman had brought the suit while serving as the legal director of the ACLU of Southern California. His client, Dr. Humberto Alvarez-Machain, was a Mexican physician accused of helping to keep an agent of the U.S. Drug Enforcement Administration alive so that he could be further interrogated by traffickers. The DEA had hired a group of Mexican nationals to detain Alvarez and transport him to the United States, where he was prosecuted for his role in the agent's murder. The George W. Bush administration urged the Court to hear the case, hoping a dismissal would help shield U.S. agents from being sued in American courts for enforcing federal law abroad.
The Court held that Alvarez was not entitled to a remedy for forcible abduction under the statute, but it did not foreclose claims in U.S. courts for unspecified human rights abuses occurring abroad. Writing for the majority, Justice David H. Souter referred to a "very limited category" of cases "defined by the law of nations and recognized at common law." (Sosa v. Alvarez-Machain
, 542 U.S. 692, 712 (2004).)
In Justice Souter's reading, the ATS was purely a jurisdictional statute that allowed U.S. courts to hear certain cases involving international claims recognized within the common law of the time. Courts should require any claim based on the "present-day law of nations to rest on a norm of international character accepted by the civilized world." Five other justices, including Justice Kennedy, joined that part of his opinion.
It still wasn't clear what offenses the Court majority had in mind. But to Hoffman and other human rights lawyers, the Filartiga
line of cases indicated that the ATS can apply to at least some extraterritorial conduct.
Dissenting in Sosa
, Justice Antonin Scalia found no such authority. "For over two decades now, unelected federal judges have been usurping this lawmaking power by converting what they regard as norms of international law into American law," he wrote. "Today's opinion approves that process in principle, though urging the lower courts to be more restrained. This Court seems incapable of admitting that some matters - any
matters - are none of its business."
Neither Filartiga nor Sosa explicitly addresses
whether a corporation can be held liable under the Alien Tort Statute, or whether the law applies to conduct occurring abroad. Those questions were raised by the U.S. Chamber of Commerce and corporate defendants in a series of lawsuits that Hoffman and others filed in the 1990s. Bush-era State Department officials also favored narrowing the scope of the ATS.
Jonathan C. Drimmer, an in-house lawyer at Barrick Gold Corp., complained to an ATS symposium last spring at Georgetown Law Center that litigation under the ATS has become a "proxy for larger concerns about globalization" - especially concerns related to oil companies and other extractive industries.
Nations have consented to foreign prosecution for certain universal-jurisdiction crimes committed in their territories, Chevron's amicus brief in Kiobel
acknowledged. But permitting U.S. courts to exercise universal civil
jurisdiction for crimes committed abroad is another matter, argued the brief's author, Harvard law professor Jack Goldsmith.
The Roberts Court could decide the extraterritorial question by relying on a recent ruling on the application of congressional statutes. In 2010 the Court ruled unanimously that the Securities and Exchanges Act does not provide a cause of action to foreign plaintiffs suing foreign and American defendants in U.S. courts. (Morrison v. Nat'l Australia Bank Ltd.
, 130 S. Ct. 2869 (2010).) Writing for the majority, Justice Scalia concluded that unless a statute specifically states otherwise, courts should assume it applies only within U.S. borders. "When a statute gives no clear indication of an extraterritorial application, it has none," he wrote. (130 S. Ct. at 2878)
The question of whether the ATS fits into that particular box is disputed, and is likely to be a major issue when the Court rehears the case.
"It's all going to be about whether the presumption [against extraterritoriality] applies," says George T. Conway III, a partner at Wachtell, Lipton, Rosen & Katz who successfully argued Morrison
before the Court.
Conway sees a "fairly powerful argument" to be made that the ATS does not extend to extraterritorial conduct. The request for reargument of Kiobel
, he says, "suggests the Court's going to be receptive to that."
Sullivan seems to hope so: Her supplemental brief in Kiobel
depends heavily on Morrison
. The ATS, she argues, "does not provide for application to conduct on foreign soil." Allowing lawsuits that concern the behavior of U.S. companies abroad would constitute a misreading of Morrison
, she insists, because "Congress, no less than the courts and the executive, should be involved in deciding whether ATS suits based on foreign conduct will disrespect foreign sovereignty."
Hoffman concedes that Morrison
will be "a significant issue" at the rehearing, though he maintains that no presumption against extraterritoriality existed when Congress enacted the ATS. As for Sullivan's argument, "I don't think it makes much sense," he says.
How the Roberts Court parses
Justice Souter's ATS formulation in Sosa
- cases "defined by the law of nations and recognized at common law" - also may be critical to the outcome in Kiobel
. Anthony J. Colangelo, an associate law professor at Southern Methodist University in Dallas, agrees with Souter that the ATS seeks not to apply U.S. federal common law to conduct overseas but rather to allow claims in U.S. courts for violations of the law of nations. Under that reading, Colangelo contends, the ATS authorizes application of international norms either directly or through common law.
Even if the Court decides that the presumption against extraterritoriality does apply to the ATS, he adds, the text of the law "strongly suggests that universal jurisdiction violations arising anywhere in the world are actionable."
If the Court does find that the statute extends to overseas conduct, transnational companies might still avoid liability for alleged wrongdoing by focusing on international law.
Sullivan contends in her supplemental brief that the petitioners' assertion of universal civil jurisdiction "clearly violates international law as to foreign defendants and raises concerns under international law as to U.S. defendants as well." She cites amicus briefs by the United Kingdom and the Netherlands asserting that application of the ATS impinges on their sovereignty.
For back-up arguments, Sullivan relies on the Second Circuit's 2010 ruling in Kiobel
to add that neither the ATS nor federal common law extends to a corporation, and that neither recognizes liability for aiding and abetting.
As Judge Cabranes noted in his majority opinion, "customary international law has steadfastly rejected the notion of corporate liability for international crimes, and no international tribunal has ever held a corporation liable for a violation of the law of nations." (Kiobel
, 621 F.3d at 120.)
But Judge Pierre N. Leval, who concurred only in the judgment dismissing the complaint, wrote a blistering separate opinion. "The law of nations does not take a position on civil liability of either natural persons or corporations," he stated. "It leaves the question of civil liability to each nation to resolve for itself. By passing the ATS, Congress resolved that question for the United States ... in favor of civil liability." (Kiobel
, 621 F.3d at 183.)
Since the Second Circuit's opinion in Kiobel
, the D.C. Circuit, the Seventh Circuit, and the Ninth Circuit have all held that corporations can
be liable under the ATS. (See Doe v. Exxon Mobil Corp.
, 654 F.3d 11 (D.C. Cir. 2011); Flomo v. Firestone Natural Rubber Co.
, LLC, 643 F.3d 1013 (7th Cir. 2011); and Sarai v. Rio Tinto, PLC
, 671 F.3d 736 (9th Cir. 2011).)
But as Wachtell's Conway notes, the Court in Morrison
dismissed "a whole edifice of law" dating back 40 years when it rejected extraterritorial jurisdiction in the securities law context. "I think the Court's position is, 'If we haven't said it, it's fresh to us and we get to start afresh,' " he says.
Over the summer,
dozens of amicus briefs in Kiobel
piled up at the Supreme Court. Although some amici were full-throated in support of the petitioners or respondents, others tried to split the difference. The Obama administration was among those hedging their bets.
Solicitor General Verrilli, who sided with the Kiobel
plaintiffs in February, filed a supplemental amicus brief in June offering "partial support of affirmance" to Royal Dutch Shell. The ATS can be applied in other circumstances, Verrilli insisted, but he argued it doesn't fit the Dutch oil company's specific conduct in Nigeria.
Significantly, the State Department's legal advisor, Harold H. Koh, signed Verrilli's first amicus brief in support of petitioners, but not the second one, which Hoffman described as "internally incoherent." Sullivan herself argued that there's no reason U.S.-based defendants should be treated differently from foreign ones.
A more sympathetic reading of Verrilli's flip-flop would be to acknowledge that his office had to accommodate positions it took on extraterritoriality during the eight-year Bush administration. The high court looks dimly upon abrupt changes of position by the government.
For human rights advocates hoping the broad sweep of the ATS can survive, there is some solace to be found in one of Justice Kennedy's remarks during oral argument in February. Although clearly troubled by extraterritorial application of the ATS in Kiobel
, Kennedy gave some limited support for its continued use. As if searching for some way to limit the types of cases that can be brought while allowing those more akin to the facts in Filartiga
, he said at one point, "We can assume that Filartiga
is a binding and important precedent for the Second Circuit."
It's possible that the Court may find the ATS could apply overseas - but only to U.S. companies. The brief filed jointly by the United Kingdom and the Netherlands contemplated just such an outcome: "[E]xtraterritorial application of the ATS to acts committed by American individuals, corporations, and other U.S. entities in foreign sovereign territory would be consistent with international law."
That result, presumably, is not what Chevron had in mind when it raised the extraterritoriality issue in its amicus brief. "I'm not sure why Chevron is championing an argument based on Morrison
," says Simons of EarthRights. "It's an odd argument for U.S. companies to be making."
The debate at Georgetown Law Center's ATS seminar explored some of the fault lines the Kiobel
case presents. Most strikingly, Kirstin Sjovoll, a young British human rights lawyer, warned of the ambivalence - if not outright distaste - with which legal experts in other countries regard U.S. courts sitting in judgment of overseas conduct. To Sjovoll, of the London firm Matrix Chambers, the ever-expanding reach of the ATS reeks of "legal colonialism."
It has not been an easy summer
for Hoffman, 61, who has faced health problems while preparing for his upcoming oral argument do-over. ("I'm just getting old," he says with a chuckle.) It's a delicate task that could define his legal legacy. Eight years ago in Sosa
, he persuaded the Court to endorse the basic principles of Filartiga
, transforming the Alien Tort Statute into a weapon for human rights lawyers. This month, the petitioners could see the Court reverse all of that.
"Obviously, I would be disappointed if the Court guts the ATS," Hoffman admits, "not just because of my career but because of the human rights victims who might be left without a remedy." Yet in his next breath he says he's not unduly concerned, citing other legal strategies to hold multinational corporations accountable for their actions. How much of that is wishful thinking remains to be seen.
Erwin Chemerinsky, dean of the UC Irvine School of Law, helped write the petitioners' briefs in Kiobel
and is confident Hoffman can handle the pressure. "He is the leading expert in the country on the ATS, and a terrific advocate," Chemerinsky says. "Hoffman is the ideal person to argue Kiobel
As for Shell, the company will trust in Sullivan - "a superb lawyer," Chemerinsky notes. The respondents also will get support from some of the nation's top Supreme Court advocates: The U.S. Chamber of Commerce hired Neal Katyal, former acting Solicitor General in the Obama administration, and BP America called upon Paul Clement, a star of the Supreme Court bar.
At oral argument in February, it was Justice Alito who appeared most dubious about human rights litigation brought under the ATS. The more he questioned Hoffman, the more outraged he seemed at the idea of U.S. courts hearing a case involving foreign plaintiffs suing a foreign company over conduct in a foreign country. At this month's proceedings, Hoffman must compellingly answer the question Alito posed back then: "What business does a case like that have in the courts of the United States?"
Lawrence Hurley, based in Washington, D.C., is a legal reporter for Greenwire and the former U.S. Supreme Court correspondent for the
Los Angeles Daily Journal.