July 31, 2021
Nestle USA, Inc. v. Doe, 593 U.S. ___ (2021) (Thomas, J.).
Special Edition Response by Ralph G. Steinhardt1
Geo. Wash. L. Rev. On the Docket (Oct. Term 2020)
Slip Opinion | SCOTUSblog
Losing the “Right” Way Preserves the Narrow Scope of the Alien Tort Statute:
NESTLE USA, INC., v. John DOE
A Special Edition Response
In Nestle v. Doe,2 the Supreme Court again addressed the reach of the Alien Tort Statute of 1789 (“ATS”), which establishes a branch of subject matter jurisdiction in federal courts over “any civil action by an alien for torts in violation of the law of nations or a treaty of the United States.”3 In Nestle and its companion case, Cargill v. Doe, the Court ruled that the ATS did not grant jurisdiction over certain Malian citizens’ allegations against American corporations for aiding and abetting child slavery on cocoa plantations in Côte D’Ivoire.4 The fatal jurisdictional flaw was certainly not that child labor and other contemporary forms of slavery are lawful under international law or that such conduct could not qualify as a “tort.” Nor was it that U.S. corporations cannot in principle be sued under the ATS, an issue that has been before the federal courts for over a decade.5 Nor was it that aiding-and-abetting liability is in principle unavailable under the ATS, which had been a highly-contested issue before the Ninth Circuit Court of Appeals in Nestle itself.6 Nor did the majority decide that the Erie Doctrine categorically prohibits the federal courts from inferring a private right of action from international law—as multiple amici had argued in support of the corporate defendants and as first advocated by self-styled “revisionists” a generation ago.7
The majority’s disposition rested instead on the conclusion that the allegations in the operative complaint were sufficiently extraterritorial to lie outside the reach of the ATS.8 Pleading the defendants’ general corporate activity in the territory of the United States, including purchasing cocoa from the plantations where forced labor was alleged, “does not draw a sufficient connection between the cause of action the respondents seek and domestic conduct. To plead facts sufficient to support a domestic application of the ATS, plaintiffs must allege more domestic conduct than general corporate activity common to most corporations.”9 Given the breadth of the arguments advanced in the briefs of the parties (and amici) and the ratio of dicta to holding in the various opinions, Nestle is best viewed as narrowly laying out the pleading requirements for ATS cases against U.S.-based multinational corporations—in effect, a specialized application of the Twombly-Iqbal doctrine but tailored to a particular jurisdictional statute as applied to a particular class of defendants.10
On the other hand, Nestle continues the unbroken losing streak for ATS claimants at the Supreme Court: Argentina v. Amerada Hess (1989), Sosa v. Alvarez-Machain (2004), Kiobel v. Royal Dutch Petroleum (2013), and Jesner v. Arab Bank PLC (2018).11 So high a fatality rate at so high a level might be interpreted as the death knell of litigation under the statute—a death watch that started in earnest thirty-seven years ago.12 Of course, dozens of ATS cases have proceeded in the lower courts in that time which have never been reviewed—let alone repudiated—by the Supreme Court,13 and, in these four losing decisions, the Court itself has generally ruled narrowly that particular claims should be rejected, but leaving multiple questions unanswered. The consequence, in an example of what Justice Scalia memorably called the Court’s “Never Say Never jurisprudence,”14 is that Nestle invites more litigation than it resolves.
Sosa Survives
The narrowness of the actual holding in Nestle obscures the breadth of its implications, especially a majority’s reaffirmation of the principle from Sosa v. Alvarez-Machain that the actionable norms under the ATS were not frozen as of 1789: the recognition of a claim under the “present-day law of nations” as an element of common law extends to “norm[s] of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.”15 What the actionable norms across the centuries have in common is a “specific, universal, and obligatory” character, combined with the “potential for personal liability”—a demanding limitation on the inference of causes of action that predates Sosa by two decades.16 Only three justices in Nestle—Thomas, Kavanaugh, and Alito—rejected that part of Sosa holding that the ATS authorizes federal courts to develop common law rules of liability where the underlying abuse violates such a norm.17 It takes a particularly selective form of originalism—not to mention an aggressive anti-literalism in the interpretation of statutes—to insist that the framers of the ATS would use the capacious language of “any civil action for a tort only in violation of” international law to confine ATS litigation (and the national interests it serves) to “violations of safe conducts, infringement of the rights of ambassadors, and piracy”—the three paradigmatic violations of international law articulated by Blackstone.18
The Potential Liability of U.S. Corporations Survives
Since the Unocal litigation,19 the federal courts have repeatedly faced the question whether multinational corporations may in principle bear international obligations to respect human rights norms and, if so, whether those obligations are enforceable through the ATS.20 Of course, no nation on the planet exempts juridical persons from legal liability for their torts, and it seems incongruous to create such an exemption for that subclass of torts that violate international law, which tend to be especially egregious. Kiobel’s specification that “mere corporate presence” is not enough to satisfy the pleading requirements of the ATS,21 reaffirmed in the majority opinion in Nestle,22 would be inexplicable if corporations were in principle immune from ATS liability. In Jesner v. Arab Bank PLC,23 the Supreme Court nevertheless ruled (5–4) that the ATS categorically forecloses claims against foreign corporations,24 and the corporate defendants in Nestle argued that U.S. corporations were entitled to the same treatment.25 As in Kiobel and Jesner, however, the Nestle Court avoided the question, despite having granted certiorari on the issue. In their separate concurrence in Nestle, Justices Gorsuch and Alito—joining the Court’s “liberal” wing on the issue—concluded that “[t]he notion that corporations are immune from suit under the ATS cannot be reconciled with the statutory text and original understanding.”26
In the years since Unocal was filed, a robust, still-developing suite of international and domestic standards has emerged governing the human rights responsibilities and best practices of the corporation in the twenty-first century.27 From that perspective, the prospect of ATS liability from Unocal onward provided a kind of normative scaffolding for the creation of a regime. As in any construction project, the scaffolding serves an important function but is not an end in itself.
The Ersatz Presumption Against Extraterritoriality Applies
As noted, the essence of the holding in Nestle is that the allegations of the defendants’ conduct in the United States were considered insufficiently connected to the plaintiffs’ injuries in Côte D’Ivoire.28 According to the majority, “nearly all the conduct [the plaintiffs] allege aided and abetted forced labor—providing training, equipment, and cash to overseas farmers—occurred in Ivory Coast.”29 This is not a disposition that protects any other U.S.-based multinational corporation with more specific “connections” to the wrongs alleged, even if the injury that results is in foreign territory, but it is an apparent application of the rule from Kiobel that the “presumption against extraterritoriality applies to claims under the ATS.”30 Of all the ways that the Nestle plaintiffs might have lost at the Supreme Court, this is the most case-specific and therefore the least destructive to future actions against U.S. companies that aid and abet human rights violations at home or abroad.
Heretofore, the “sin” to which that presumption is addressed has always involved some substantive statutory regime adopted by Congress—in antitrust, labor, securities regulation—and projected abroad to control conduct in foreign territories.31 According to the Supreme Court’s decision in RJR Nabisco v. European Community, if a statute does not explicitly apply abroad, the courts must then ask whether the case involves “a domestic application of the statute [and not an extraterritorial application of law] . . . by looking to the statute’s ‘focus.’”32 If the statute’s focus has domestic elements and those elements are present in the case, then the presumption is overcome, and the case may proceed.
There are multiple problems mapping that two-step approach onto ATS cases.
First, after Sosa, the applicable substantive standard in ATS litigation must be international law norms comparable to the “18th-century paradigms that [the Supreme Court has] recognized,” like piracy and attacks on diplomats.33 The remedial exercise at the heart of ATS litigation distinctly does not, indeed after Sosa cannot, involve the application of substantive U.S. law abroad.
Second, even by analogy, what is the regulatory “focus” of a purely jurisdictional statute? The ATS was a provision of the First Judiciary Act of 1789, effectively assuring that non-citizens of the United States would have access to the federal courts for tortious violations of international law. Nothing in the language of the statute limited it to torts in the United States or committed by U.S. citizens. Garden-variety tort suits by aliens were already within the general jurisdiction of every State’s courts, including claims arising abroad so long as they were deemed to fall within the transitory tort doctrine. The ATS assured that aliens would have a federal option for that subclass of transitory torts that implicated the Nation’s interest in abiding by (and when appropriate enforcing) customary and conventional international law. That the “focus” of the ATS is not conduct or injury in the United States is clear not only from the fact that the text of the statute has no limiting language to that effect but also from the fact that the paradigmatic tort to which the ATS applies—piracy—was not limited to conduct in U.S. territory or territorial waters or by U.S. citizen-pirates. Besides, some of the most celebrated cases in the history of ATS litigation34—not one of which has been explicitly questioned or disapproved by the Supreme Court—involved the finding of liability and the award of damages when the tortious conduct occurred abroad but the defendant was found within the United States. So much now seems to command the assent of the Nestle majority, noting its disagreement with the corporate companies’ argument that the focus of the ATS is the location of the principal offence or of the plaintiffs’ injury. Accordingly, lower courts commit reversible error if they dismiss ATS cases solely because the injury occurred abroad.
Third, the Supreme Court has deployed the presumption against extraterritoriality in these cases because it says it is concerned about the foreign relations implications of ATS litigation.35 But providing safe haven to a human rights violator—whether a natural or a juridical person—also triggers “foreign entanglements”36 and diplomatic strife, as the United States discovered when hostages were taken at the embassy in Iran right after the Shah was welcomed in the United States in 1979.37 In short, the Court’s international law touchstone—avoiding international strife—may not always cut in favor of dismissing ATS claims with no territorial link to the United States other than the presence of the defendant. The government of the United States made exactly this point in its amicus briefs to the Filártiga and Karadzić courts, urging the exercise of jurisdiction in those foreign-cubed cases,38 specifically to avoid diplomatic strife.39 This is also not a matter purely of foreign relations: as a legal matter, the state responsibility of a nation can be triggered—and in the eighteenth-century could have been triggered—in such circumstances, akin to harboring a fugitive or a terrorist.
Finally, what does Nestle’s “focus on focus” do to Kiobel’s “touch and concern” test, which was the test for determining when ATS claims had a sufficient connection to US territory for the case to survive a motion to dismiss?40 Under RJR Nabisco, there was no need to consider the “focus” of the ATS in Kiobel, because all of the alleged conduct in that case occurred in Nigeria.41 That suggests that if there were allegations involving U.S.-connected conduct, the “focus” of the ATS would then become salient, perhaps to determine whether that particular conduct falls within the jurisdictional reach of the statute. Perhaps, if a stronger link exists between the plaintiffs’ injury and the defendant’s U.S.-based conduct, that could automatically satisfy Kiobel’s “touch and concern” requirement, thereby making the focus test relevant, which could perhaps be determined case-by-case instead of for the statute as a whole. Or perhaps, the “touch and concern” test is the focus of the ATS. And are cases against corporations to be handled differently from cases against foreign individuals, where the safe haven concerns are paramount and where there is no contestable issue of presence? This is the stuff of incoherence.
Conclusion
After Nestle, future cases challenging contemporary forms of slavery or forced labor may now be brought—not under the ATS—but under the Trafficking Victims Protection Reauthorization Act (TVPRA), 18 U.S.C. § 1581, et seq., which was explicitly made extraterritorial for some cases in 2008.42 But in ATS cases more generally, spare a solicitous thought for the federal judges who must now apply the test(s) adopted by the Supreme Court in ATS cases. The visceral hostility to ATS litigation comes through loudly, but the early legislation of the Founders—not to mention the current content of international law–is not to be disregarded so lightly.
Professor Ralph G. Steinhardt is the Lobingier Professor of Comparative Law and Jurisprudence at the George Washington University Law School. He specializes in international law, human rights, conflicts of laws, international civil litigation, and international business transactions. His current research and advocacy concern the human rights obligations of multi-national corporations. He now serves as the only U.S. citizen on the Expert Legal Panel on that subject under the auspices of the International Commission of Jurists and has served as an expert witness in several federal cases testing the liability of corporations for aiding and abetting human rights violations by governments.
1 The author was co-counsel for the respondent in the Sosa litigation, infra note 11, and for the plaintiffs in the Marcos litigation, infra note 13. He also represented a group of international law scholars appearing as amicus curiae in support of the plaintiffs/petitioners in the Kiobel litigation, infra note 5. In Nestle, he joined the brief amicus curiae for international law scholars in support of plaintiffs/respondents. Brief of International Law Scholars as Amici Curiae in Support of Respondents, Nestle v. Doe, No. 19-416 (U.S. filed Oct. 21, 2020). The author thanks Anabel Butler for her splendid and timely research assistance.
2 No. 19-416, 593 U.S. ____ (2021).
3 28 U.S.C. § 1350. The ATS was a provision of the First Judiciary Act of 1789, assuring that non-citizens of the United States would have access to federal courts for tortious violations of international law. Garden-variety tort suits by aliens were within the general jurisdiction of every State’s courts so long as the claims fell within the transitory tort doctrine. As explained by the Second Circuit Court of Appeals in Filártiga v. Peña- Irala, 630 F.2d 876, 885 (2d Cir. 1980), the commission of a tort abroad creates an obligation to make reparations, which follows the tortfeasor and which could be enforced through the courts of any other nation with personal jurisdiction: “It is not extraordinary for a court to adjudicate a tort claim arising outside of its territorial jurisdiction . . . . where the lex loci delicti commissi is applied, it is an expression of comity to give effect to the laws of the state where the wrong occurred.” In effect, the ATS assured that aliens would have a federal option for that subclass of transitory torts that violated international law.
4 Nestle v. Doe, 593 U.S. ____ (2021), No. 19-416, slip op. at 3 (U.S. Jun. 17, 2021) [hereinafter Nestle].
5 As noted in Jesner v. Arab Bank, PLC, 138 S.Ct. 1386, 1396 (2018), three circuit courts of appeals ruled that corporations can be defendants in ATS actions: the Ninth Circuit in Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1021–22 (9th Cir. 2014) and Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011) (en banc); the District of Columbia Circuit in Doe VIII v. Exxon Mobil Corp., 654 F.3d 11, 40–55 (D.C. Cir. 2011), vacated on other grounds, 527 F. App’x 7 (D.C. Cir. 2013); and the Seventh Circuit in Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013, 1021 (7th Cir. 2011). Only the Second Circuit immunized corporations in principle from the jurisdictional reach of the ATS. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010). The Supreme Court categorically barred the application of the ATS to non-U.S. corporations in Jesner, 138 S.Ct. 1386, leaving open the possibility of applying the ATS to American companies.
6 See Nestle, slip op. at 4 (noting that although “abetting forced labor is a violation of international law,” claimants still “impermissibly seek extraterritorial application of the ATS.”).
7 See, e.g., Brief of the Coca-Cola Company as Amicus Curiae in Support of Petitioners at 25, No. 19-416 (U.S. filed Sept. 8, 2020) (arguing that, post-Erie, such inferences at the federal level, are better left to the legislative branch). See also Curtis Bradley & Jack Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997). For the effort to recast revisionism after the Sosa decision, see Curtis A. Bradley, Jack L. Goldsmith, & David H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 Harv. L. Rev. 869 (2007). For what I believe is a definitive repudiation of the newest version of revisionism, see William S. Dodge, Customary International Law and the Question of Legitimacy, 120 Harv. L. Rev. F. 19 (2007); Carlos M. Vazquez, Customary International Law as U.S. Law: A Critique of the Revisionist and Intermediate Positions and a Defense of the Modern Position, 86 Notre Dame L. Rev. 1495 (2011).
8 Nestle, slip op. at 3.
9 Nestle, slip op. at 2 (emphasis added).
10 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Iqbal v. Ashcroft, 556 U.S. 662 (2009).
11 Argentina v. Amerada Hess, 488 U.S. 428 (1989); Sosa v. Alvarez-Machain, 542 U.S. 692 (2004); Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013); Jesner v. Arab Bank PLC, 138 S.Ct. 1386 (2018).
12 The first sustained attack on the modern conception of the ATS can be traced to Judge Robert Bork’s concurring opinion in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 810–16 (D.C. Cir. 1984) (per curiam), cert. denied, 470 U.S. 1003 (1985), where he concluded that the ATS does not provide a cause of action and cannot be invoked “unless a modern statute, treaty, or executive agreement provide[s] a private cause of action for violations of new international norms which do not themselves contemplate private enforcement.” 726 F.2d at 816.
13 See, e.g., Estate of Alvarez v. Johns Hopkins University, 373 F. Supp. 3d 639 (D. Md. 2019) (unconsented human experimentation); Hilao v. Estate of Marcos, 25 F.3d 1467 (9th Cir. 1994), cert. denied, 513 U.S. 1126 (1995) (torture, summary execution, arbitrary detention); Kadic v. Karadzić, 70 F.3d 232 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996) (torture, genocide, war crimes); Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996), cert. denied, 519 U.S. 830 (1996) (torture, sexual assault); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1232 (N.D. Ga. 2002) (genocide); Mushikiwabo v. Barayagwiza, No. 94CIV3267 (JSM), 1996 WL 164496 (S.D.N.Y. Apr. 9, 1996) (genocide); Cabello v. Fernandez-Larios, 157 F. Supp. 2d 1345 (S.D. Fla. 2001) (summary execution, war crimes); Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1985) (summary execution); Paul v. Avril, 901 F. Supp. 330 (S.D. Fla. 1994) (arbitrary detention).
14 Sosa, 542 U.S. at 750 (Scalia, J., concurring in part).
15 Id. at 725.
16 Id. at 732, 724. For one early discussion of the requirements of international torts, see Jeffrey Blum & Ralph Steinhardt, Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act After Filártiga v. Peña-Irala, 22 Harv. Int’l. L.J. 53, 87–90 (1981) (explaining that the international tort must be definite, universally condemned, and obligatory rather than aspirational). See also Forti v. Suarez-Mason, 672 F. Supp. 1531, 1541 (N.D. Cal. 1987) (discussing torture as a tortious violation of an international human rights norm for which the defendant could be held personally liable under the ATS).
17 Nestle, slip op. at 5–11.
18 28 U.S.C. § 1350 (emphasis added). See Nestle, slip op. at 6–7 (Sotomayor, J., concurring) (stating that a textual and originalist analysis of the ATS should lead to the rejection of such a restriction). Blackstone himself never suggested that the three listed wrongs exhausted the list of offences against the law of nations, referring to them only as the “principal” such offences. Id. at 2 (quoting William Blackstone, Commentaries on the Laws of England 68 (1769)).
19 Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997), aff’d in part and rev’d in part, 395 F.3d 932 (9th Cir. 2002).
20 See cases cited at supra note 5.
21 Kiobel, 569 U.S. 108, 125.
22 Nestle, slip op. at 5.
23 Jesner v. Arab Bank, PLC, 138 S.Ct. 1386, elevated the Second Circuit’s approach to the question over the disposition of every other circuit court of appeals that had previously addressed the issue. See cases cited at note 5, supra.
24 138 S.Ct. at 1403.
25 Brief for Petitioner Nestlé USA, Inc. at 39, Nestle v. Doe, No. 19-416 (U.S. filed Aug. 31, 2020).
26 Nestle, slip op. at 1 (Gorsuch, J., concurring).
27 See, e.g., Corporate Responsibility for Human Rights Impacts: New Expectations and Paradigms (Lara Blecher, Nancy Kaymar Stafford, Gretchen C. Bellamy, eds.) (2016). In Nevsun Resources Ltd v. Araya, [2020] S.C.R. 5 (Can.), the Supreme Court of Canada recently ruled that the customary international law of corporate human rights responsibility was sufficient to support a civil action against a Canadian company for violations committed outside of Canada.
28 See Nestle, slip op. at 5.
29 Id. at 2.
30 Kiobel, 569 U.S. at 124. Despite decades of contrary experience in the lower courts, the Kiobel court was apparently concerned that the usual suite of doctrines and familiar logistical arrangements in transnational cases—e.g., forum non conveniens, the common techniques of international judicial assistance, and the choice of law—did not adequately protect the federal judiciary from ATS cases with an inadequate connection to the United States.
31 Boureslan v. Arabian American Oil Co., 499 U.S. 244 (1991) (anti-discrimination statute); Foley Brothers Inc. v. Filardo, 336 U.S. 281 (1949) (labor law); Morrison v. National Australian Bank, 561 U.S. 247 (2010) (securities regulation).
32 RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2101 (2016). The Court applied this analysis in Nestle. Nestle, slip op. at 4.
33 Sosa, 542 U.S. at 725.
34 See, e.g., Filártiga v. Peña-Irela, 630 F.2d 876 (2d. Cir. 1980); In re Estate of Ferdinand Marcos, Human Rights Litigation, 25 F.3d 1467 (9th Cir. 1994); Kadic v. Karadzić, 70 F.3d 232 (2d Cir. 1995).
35 Nestle, slip op. at 9–10; Nestle, slip op. at 6 (Gorsuch, J., concurring).
36 Jesner, 138 S. Ct. 1386.
37 The Iranian Hostage Crisis, Office of the Historian, Department of State, https://history.state.gov/departmenthistory/short-history/iraniancrises [https://perma.cc/SL5L-U24W].
38 “Foreign-cubed” describes those cases that involve a foreign plaintiff suing a foreign defendant for foreign conduct.
39 See Memorandum for the United States as Amicus Curiae at *4–6, Filártiga v. Peña-Irala, No. 79-6090 (U.S. filed Jun. 6, 1980); Statement of Interest of the United States at 2–3, 5–14, Kadic v. Karadzić, Nos. 94-9035, 94-9069 (2d Cir. filed Sept. 13, 1995).
40 Kiobel, 569 U.S. 124.
41 Id. at 113 (discussing the facts of the case).
42 Nestle, slip op. at 9–10 (noting, for example, that the Trafficking Victims Protection Reauthorization Act of 2003 (TVPRA), 18 U.S.C. § 1581, et seq., allows a plaintiff to bring a tort suit against a direct participant in human trafficking).
Recommended Citation
Ralph G. Steinhardt, Special Edition Response, Losing the “Right” Way Preserves the Narrow Scope of the Alien Tort Statute: NESTLE USA, INC., v. John DOE, Geo. Wash. L. Rev. On the Docket (July 31, 2021), https://www.gwlr.org/losing-the-right-way-preserves-the-narrow-scope-of-the-ats.
