Nos.

14-777, 14-1011
IN THE

LILIANA MARIA CARDONA, et al.

Petitioners,

v.

CHIQUITA BRANDS INTERNATIONAL, INC., et al.,

Respondents.
DOES 1-144, et al.
Petitioners,

v.

CHIQUITA BRANDS INTERNATIONAL, INC., et al.,

Respondents.
On Petitions For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

SUPPLEMENTAL BRIEF OF RESPONDENTS

Jonathan M. Sperling
COVINGTON & BURLING LLP
The New York Times Building
620 Eighth Avenue
New York, NY 10018-1405
(212) 841-1000

April 2015

John E. Hall
Counsel of Record
James M. Garland
Mark W. Mosier
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street, N.W.
Washington, DC 20001-4956
jhall@cov.com
(202) 662-6000

TABLE OF CONTENTS
Page
SUPPLEMENTAL BRIEF OF RESPONDENTS ..... 1
I.

Drummond Confirms Respondents

Reading Of The Decision Below And
Refutes Petitioners Allegation Of A
Circuit Split ..................................................... 1

II.

There Is No Basis To Grant, Vacate, And

Remand ............................................................ 4

CONCLUSION ........................................................... 6

TABLE OF AUTHORITIES
Page(s)
Cases
Al Shimari v. CACI Premier Technology,
Inc.,
758 F.3d 516 (4th Cir. 2014) ...................................... 3
Baloco v. Drummond,
No. 12-15268-BB, Order (Mar. 26,
2015) ........................................................................... 5
Doe v. Drummond Co.,
No. 13-15503, __ F.3d __, 2015 WL
1323122 (Mar. 25, 2015) .................................. passim
Mastafa v. Chevron Corp.,
770 F.3d 170 (2d Cir. 2014) ....................................... 3
Wisniewski v. United States,
353 U.S. 901 (1957) .................................................... 4

ii

SUPPLEMENTAL BRIEF OF RESPONDENTS

Pursuant to this Courts Rule 15.8,
Respondents file this supplemental brief to address
the recent decision of the U.S. Court of Appeals for
the Eleventh Circuit in Doe v. Drummond Co., No.
13-15503, __ F.3d __, 2015 WL 1323122 (Mar. 25,
2015). The Doe Petitioners in Case No. 14-1011 filed
a supplemental brief addressing Drummond on April
1, 2015.
Drummond rejects Petitioners reading of the
Eleventh Circuits decision in this case, and shows
that the circuit split Petitioners have alleged does
not exist. Recognizing that their arguments for
plenary review have been fatally undermined, the
Doe Petitioners now ask this Court to grant
certiorari, vacate the decision below, and remand for
reconsideration (GVR) in light of Drummond. That
request has no merit. Far from calling into question
the result in this case, the Drummond panel
emphasized that it was following not contradicting
or undermining the decision below. In fact, the
Drummond panel confronted similar domestic
conduct to what is alleged here, and found in light
of [its] precedent that such claims fail the very test
that Petitioners have advocated and that the
Eleventh Circuit has now adopted.
2015 WL
1323122, at *16 (citing the decision below).
I. Drummond Confirms Respondents Reading
Of The Decision Below And Refutes
Petitioners Allegation Of A Circuit Split.
The basis of Petitioners argument that
certiorari is warranted has been their theory that
1

the decision below would eliminate all ATS claims

where the ultimate abuses occur abroad regardless of
their connection to the United States. Reply Br. of
Cardona Petrs at 7; see also id. at 1 ([T]he panel
majority below reached a legal conclusion that only
the location of the injury matters.); id. at 2 (For the
panel majority, the fact that Petitioners injuries
were caused by human rights abuses ultimately
completed on Colombian territory was the beginning
and ending of its legal analysis.). Respondents, by
contrast, have explained that the decision below
determined only that there was no jurisdiction under
the facts of this case, and broke no significant new
ground concerning the extraterritorial application of
the Alien Tort Statute (ATS). Br. in Opp. at 10-12.
The Eleventh Circuits recent decision in
Drummond conclusively resolves that dispute in
Respondents favor. Far from reading the decision
below as embracing the categorical rule that
Petitioners contend, the Drummond panel concluded
that the decision below leave[s] unanswered a
considerable number of questions as to this circuits
interpretation and application of Kiobels operative
language. 2015 WL 1323122, at *3; see also id. at
*10 (The majority opinion in Cardona offers only
limited guidance as to the interpretation of Kiobel
and the application of the presumption against
extraterritoriality.).
Drummond went on to reject the rule that
Petitioners assert was established as the law of the
Eleventh Circuit by the decision below. The court of
appeals decline[d] to construe our precedent i.e.,
the decision in this case as finding that facts other
than the extraterritorial or domestic location of the
2

underlying conduct are irrelevant. Id. at *11 n.24.

Instead, it expressly adopted Petitioners preferred
approach of considering the location where the
defendant is alleged to engage in conduct that
directly or secondarily results in violations of
international law within the meaning of the ATS.
Id. at *11 (emphasis added) (citing Mastafa v.
Chevron Corp., 770 F.3d 170, 185, 195 (2d Cir.
2014)).1
Notably, the Eleventh Circuit reached this
result by looking to recent decisions from the
Fourth, Second, and Ninth Circuits, which offer[ed]
guidance in understanding our own precedent and in
answering questions that our two decisions do not
address.
Id. at *6.
In holding that the
[extraterritoriality] inquiry may indeed extend to the
place of decision-making, the panel emphasized that
its approach is in accord with the other circuit
courts of appeals to consider this question. Id. at
*15. It then cited favorably the Second Circuits
decision in Mastafa, the Fourth Circuits decision in
Al Shimari v. CACI Premier Technology, Inc., 758
F.3d 516 (4th Cir. 2014), and the Ninth Circuits

Drummond also contradicts Petitioners view that the

decision below treats Respondents U.S. citizenship as
irrelevant to its analysis. Reply Br. of Cardona Petrs at 7.
[W]hile Cardona held that plaintiffs could not simply anchor
ATS jurisdiction in the nature of the defendants as United
States corporations, it did not jettison this factors usefulness
entirely. 2015 WL 1323122, at *13. The Drummond panel
was willing to consider the defendants U.S. citizenship as
relevant, even though it does not firmly secure our
jurisdiction. Id.
1

decision in Mujica v. AirScan Inc., 771 F.3d 580 (9th

Cir. 2014). 2015 WL 1323122, at *15.
It is now clear, if it was not already, that the
decision below does not adopt the test that
petitioners claim it does; nor does it create any
circuit split over the extraterritorial application of
the ATS. Petitioners real complaint is that the court
of appeals got it wrong on the facts.
But
Respondents have already explained why that
decision was correct under the framework that the
Eleventh Circuit has now expressly adopted in
Drummond. Br. in Opp. at 20-22. In any event, this
Court should follow its usual practice of denying
requests to correct alleged errors in the lower courts
application of law to fact.
II. There Is No Basis To Grant, Vacate, And
Remand.
The Doe Petitioners now appear to concede the
lack of a circuit split warranting plenary review by
this Court. Instead, they claim that the decision
below conflicts with the Eleventh Circuits own
decision in Drummond, and ask for a GVR order on
that basis. Supp. Br. of Doe Petrs at 4.
As an initial matter, allegations of an intracircuit split rarely if ever trigger a GVR under this
Courts practice. It has long been the policy of this
Court to leave it to a Court of Appeals to reconcile
its internal difficulties. Wisniewski v. United States,
353 U.S. 901, 902 (1957). If there were truly
disagreement within the Eleventh Circuit as to the
reach of the ATS (Supp. Br. of Doe Petrs at 3), it
would be up to the Eleventh Circuit to resolve that
disagreement en banc. The fact that the Eleventh
4

Circuit has repeatedly declined en banc review of

post-Kiobel extraterritoriality decisions is a telling
indication that, just as the panel in Drummond
concluded, no such disagreement exists. The petition
for rehearing en banc in the present case did not
receive a single vote, Pet. App. 156, and the day after
the Eleventh Circuit decided Drummond, the full
court of appeals denied en banc review in Baloco v.
Drummond.
No. 12-15268-BB, Order (Mar. 26,
2015).
A GVR order is especially unwarranted
because the Drummond panel went out of its way to
emphasize that it was adhering to circuit precedent.
In fact, though it applied precisely [the legal
standard] petitioners in this case are arguing (Supp.
Br. of Doe Petrs at 3), the Drummond panel was
compel[led] to conclude, by application of [the
Eleventh Circuits] prior opinions, that it lacked
jurisdiction. 2015 WL 1323122, at *4. This case,
Baloco, and Doe v. Drummond all involved similar
domestic conduct. Id. at *16. Accordingly, [i]n
light of [Eleventh Circuit] precedent, the domestic
location of the decision-making alleged in general
terms here does not outweigh the extraterritorial
location of the rest of Plaintiffs claims. Id.
In short, the Drummond panel made clear
that it viewed that decision and the decision below as
entirely consistent. There is no reasonable likelihood
that a GVR would lead the court of appeals to
reconsider its view that there is no jurisdiction. To
the contrary, the court of appeals on remand would
be bound by the Drummond and Baloco panels
finding of no jurisdiction under similar facts.
Indeed, it would make no sense to remand this case
5

for further consideration in light of a decision that

adhere[d] to the result[] in this very case. Id. at
*18.
CONCLUSION
For the foregoing reasons, as well as the
reasons set forth in the brief in opposition, the
petition should be denied.
Respectfully submitted,
Jonathan M. Sperling
COVINGTON & BURLING LLP
The New York Times Building
New York, NY 10018-1405
(212) 841-1000

April 2015

John E. Hall
James M. Garland
Mark W. Mosier
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street, N.W.
Washington, DC 20001-4956
jhall@cov.com
(202) 662-6000