Professional Documents
Culture Documents
No. 14-1810
No. 14-1934
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge. (1:05-cv-00701-LMB-JFA)
Argued:
Decided:
February 1, 2016
ARGUED:
Joseph
Peter
Drennan,
Alexandria,
Virginia,
for
Appellant/Cross-Appellee. Tara Melissa Lee, DLA PIPER LLP (US),
Reston, Virginia, for Appellee/Cross-Appellant.
ON BRIEF:
Joseph C. Davis, Reston, Virginia, Paul D. Schmitt, Mason
Hubbard, DLA PIPER LLP (US), Washington, D.C.; Laura Kathleen
Roberts, Nushin Sarkarati, Scott A. Gilmore, CENTER FOR JUSTICE
& ACCOUNTABILITY, San Francisco, California, for Appellee/CrossAppellant.
left
for
dead
at
the
direction
of
Yusuf
Ali,
Warfaa later
sued Ali under the Alien Tort Statute (ATS), 28 U.S.C. 1350,
and the Torture Victim Protection Act of 1991 (TVPA), Pub. L.
No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. 1350
note), alleging several violations of international law.
After
lifting
multi-year
stay,
the
district
court
and
concern
the
United
States
so
as
to
establish
Both Warfaa
I.
Throughout
the
political upheaval. 1
controlled
the
1980s,
Somalia
experienced
period
of
countrys
government,
and
Barres
dictatorship
property
destruction.
Warfaas
clan,
the
Isaaq,
was
targeted.
Ali
supported
the
Barre
regime
and
commanded
the
Fifth
that
they
accused
of
supporting
an
opposition
Soldiers
Some of the
For instance,
Warfaa claims that soldiers hit him with the butt of a gun, tied
him in a painful position, kicked him, and stripped him naked.
He was taken to Alis office, where Ali personally questioned
him
about
his
supposed
support
of
SNM
and
his
rumored
Later, soldiers
his
soldiers
committed
similar
acts
of
torture
against
March
1988,
SNM
fighters
attacked
Fifth
Battalion
After ordering
his soldiers to defend the base, Ali shot Warfaa in the wrist
and leg, causing him to fall unconscious.
When
The
voluntarily
left
the
country
in
1994.
For
reasons
not
identified
only
as
John
Doe,
and
Jane
Doe
Plaintiffs
In
August 2005, the district court stayed the case until a party
could provide a declaration from the United States Department of
State indicating that the action would not interfere with U.S.
foreign policy.
After the
Supreme
2013,
Court
issued
its
Kiobel
decision
in
April
the
district court again extended the stay and invited the State
Department to express its view as to whether the issues before
the court would affect United States foreign policy.
The State
On April 25, 2014, the district court lifted the stay and
ordered Warfaa to file an amended complaint.
complaint
contains
six
counts:
(1)
Warfaas amended
attempted
extrajudicial
punishment;
humanity;
and
(4)
(6)
arbitrary
war
detention;
crimes.
All
six
(5)
crimes
counts
against
allege
torts
filed
to
motion
Federal
Although
to
Rules
the
dismiss
of
the
Civil
motion
did
amended
Procedure
not
address
complaint
12(b)(1)
and
Kiobel,
the
J.A. 66.
It
J.A. 78.
In
Id. 4
court
the
rejected
Alis
motion
to
dismiss
The district
TVPA
counts,
763, 768 n.1 (4th Cir. 2012) (explaining that a foreign official
is entitled to lodge an immediate appeal from a pretrial order
denying him common law immunity).
final judgment on the ATS claims.
II.
Whether
the
ATS
bars
claims
related
to
extraterritorial
which
the
Court
considers
de
novo.
Johnson
v.
Am.
Likewise, the
See Smith
v. Ray, 781 F.3d 95, 100 (4th Cir. 2015) (reviewing a district
courts decision to deny qualified immunity de novo); Wye Oak
Tech., Inc. v. Repub. of Iraq, 666 F.3d 205, 212 (4th Cir. 2011)
(considering a question of immunity under the Foreign Sovereign
Immunities Act de novo).
III.
The ATS does not expressly provide any causes of action.
Kiobel, 133 S. Ct. at 1663.
28 U.S.C. 1350.
After
1980, ATS claims became more common, often relying on the Second
Circuits decision in Filrtiga v. Pea-Irala, 630 F.2d 876 (2d
Cir. 1980).
torture
claim
of
committed
door
to
litigation,
more
Perry
ATS
S.
abroad,
with
Bechky,
and
Homage
all
the
acts
Filrtiga opened
launched
to
of
modern
Filrtiga,
33
ATS
Rev.
Litig. 333, 336 (2014), but recent Supreme Court decisions have
significantly limited, if not rejected, the applicability of the
Filrtiga rationale.
that ATS includes implicit geographic limits); Sosa v. AlvarezMachain, 542 U.S. 692, 732 (2004) (holding federal courts cannot
recognize claims brought via the ATS unless plaintiffs premise
those
claims
on
specific,
universal,
and
obligatory
international norms). 6
reach
of
the
is
narrow
and
strictly
circumscribed.
Kiobel,
the
Supreme
Court
considered
whether
an
ATS
Id.
Court
has
applied
extraterritorial application.
Id.
that
no
when
statute
extraterritorial
gives
application,
it
presumption
against
has
indication
none,
and
of
an
reflects
the
rule
the
world.
Id.
court
that
applies
the
ATS
Id.
at
1664-65
([T]he
principles
underlying
the
Accordingly, in
barred.
ATS
Id. at 1669.
can
touch
force
create
and
to
jurisdiction
concern
displace
application.
United
the
for
such
States
claims
territory
presumption
against
only
where
with
they
sufficient
extraterritorial
Id.
In
directly
responsible
for
abusive
mistreatment
Id. at 520-21.
and
We
Id. at 528.
To
is
not
sufficient
merely
to
say
Id.
that
the
actual
Id.
plaintiffs
alleged
extensive
relevant
conduct
in
Id.
Id. at
529.
Al Shimari thus is best read to note that the presumption
against ATS extraterritorial application is not irrefutable.
plaintiff
may
rebut
the
presumption
in
certain,
narrow
the
alleged
conduct
bears
such
strong
and
direct
the
strong
and
direct
touches
we
recognized
in
Al
Shimari.
An ATS claim premised on no relevant conduct in the United
States
will
fit
within
the
heartland
of
cases
to
which
the
782
F.3d
576,
592
n.23
(11th
Cir.
2015)
([I]f
no
relevant
against
extraterritoriality
prevents
Cir.
2014)
(The
allegations
that
form
the
basis
of
Chowdhury
v.
Worldtel
Bangl.
Holding,
Ltd.,
746
F.3d 42, 49 (2d Cir. 2014) ([A]ll the relevant conduct set
forth
in
plaintiffs
complaint
occurred
in
Bangladesh,
and
v.
Chiquita
Brands
Intl,
Inc.,
760
F.3d
1185,
1191
alleged
torture
occurred
outside
the
territorial
F.3d
174,
189
(2d
Cir.
2013)
(Kiobel
forecloses
the
by
beginning
with
Kiobels
strong
We analyze that
presumption
against
15
against
extraterritorial
application
the
of
U.S.
States.
launched,
Kiobel, 133
government,
U.S.
entities,
or
events
in
the
and
controlled
by
the
Somali
army.
United
escape
--
thus
ending
the
violation
--
Ali
Warfaas
occurred
in
Somalia, as well.
The only purported touch in this case is the happenstance
of
Alis
after-acquired
residence
in
the
United
States
long
after
the
alleged
events
abuse. 9
of
Mere
happenstance
of
See Kiobel,
States,
United States.
In
sum,
even
when
the
perpetrator
later
moves
to
the
which
touches
and
has
pled
no
claim
The
the
ATS
counts
in
the
complaint
for
lack
of
jurisdiction. 11
IV.
The
district
court
allowed
Warfaas
TVPA
claims
to
go
the
acts
capacity.
Id.
were
performed
in
the
defendants
official
would
have
us
overrule
Samantar
entirely,
but
that
only upon the district court, but also upon another panel of
this court -- unless and until it is reconsidered en banc.
Doe
v. Charleston Area Med. Ctr., Inc., 529 F.2d 638, 642 (4th Cir.
1975); see also, e.g., United States v. Spinks, 770 F.3d 285,
289-90 (4th Cir. 2014).
McMellon
v. United States, 387 F.3d 329, 334 (4th Cir. 2004) (en banc).
court
properly
concluded
Samantar
Id.
The
forecloses
Alis
district
court
V.
For
the
correctly
nexus
with
held
the
those claims.
claim
of
reasons
that
described
Warfaas
United
States
ATS
to
above,
claims
the
lacked
establish
sufficient
jurisdiction
over
foreign
official
immunity.
The
district
courts
judgment is therefore
AFFIRMED.
19
in
part
and
dissenting
in
I.
In Kiobel, a group of Nigerian political asylees brought
suit against Royal Dutch Petroleum Company, Shell Transport and
Trading
Company,
and
their
joint
subsidiary,
Shell
Petroleum
abuses
against
them.
133
S.
Ct.
at
1662-63.
The
580, 591 (9th Cir. 2014) (citing Kiobel, 133 S. Ct. at 1662-63;
id. at 1677-78 (Breyer, J., concurring)).
reach
suffices
too
far
to
extraterritoriality.
to
say
displace
that
the
mere
corporate
presumption
20
presence
against
The Court,
however,
was
careful
to
leave
open
number
of
significant
Following
considered
Kiobel,
and
corporations
number
rejected
and
ATS
their
of
our
claims
corporate
sister
circuits
have
against
U.S.
brought
officers
for
aiding
and
See
Maj. Op. 14-15 (citing Doe v. Drummond Co., 782 F.3d 576, 601
(11th
Cir.
2015);
Chowdhury
v.
Worldtel
Bangladesh
Holding,
Ltd., 746 F.3d 42, 45 (2d Cir. 2014); Cardona v. Chiquita Brands
Intl Inc., 760 F.3d 1185, 1188-89 (11th Cir. 2014); Mujica, 771
F.3d at 596; Balintulo v. Daimler AG, 727 F.3d 174, 179 (2d Cir.
2013)).
the
majority
does
not
address.
This
is
not
to
Op.
16
considerations
n.
may
8,
but
differ
that
where
the
the
analysis
defendant
and
is
relevant
a
natural
person.
Several cases brought prior to Kiobel considered situations
involving individual, natural-person defendantsfacts more akin
to those presented here.
876,
878
(2d
Cir.
1980),
Paraguayan
21
citizens
brought
an
United
visa,
States,
overstayed
his
visitors
and
had
been
residing in the United States for over nine months when one of
the plaintiffs served him with a summons and civil complaint.
Id. at 878-79.
ha[d] rarely been the basis for jurisdiction during its long
history,
the
Second
Circuit
found
little
doubt
Id. at 887.
that
the
This is
Id.
F.3d 232, 236-37 (2d Cir. 1995) (finding jurisdiction for ATS
claims
brought
by
Croat
and
Muslim
citizens
of
Bosnia-
Philippine
citizen
against
former
Philippine
official
for
Nothing
in
those
opinions,
however,
explicitly
overrules
133
542
S.
U.S.
Ct.
at
at
1675
732).
(Breyer,
Even
J.,
Congress
concurring)
has
(citing
recognized
that
II.
This case involves allegations of serious violations of
international law committed by a natural person who has sought
safe haven within our borders and includes claims that are not
covered by the Torture Victim Protection Act nor the reasoning
and holding of Kiobel.
Thus,
the
proper
extraterritorial
implementation
application
in
Id.
of
this
the
presumption
case
requires
against
further
that the human rights abuses occurred abroad ignores the myriad
ways in which this claim touches and concerns the territory of
the United States.
23
States
. . .
with
sufficient
force
to
displace
the
than
conductto
presumption
may
be
the
Maj. Op. 13
describe
the
displaced,
circumstances
however,
in
suggest[s]
that courts must consider all the facts that give rise to ATS
claims, including the parties identities and their relationship
to the causes of action.
location
where
the
plaintiff[]
actually
sustained
[his]
injuries, there are three facts that distinguish this case from
Kiobel.
Id. at 529.
relevant
touch
in
Al
Shimari,
where
we
observed
that
such
conduct
committed
abroad,
given
that
the
defendants
are
Mass. 2013) (holding that Kiobel did not bar ATS claims against
an American citizen, in part because [t]his is not a case where
a foreign national is being hailed into an unfamiliar court to
defend himself)).
F.3d 763, 778 (4th Cir. 2012); see also id. at 767 (finding
relevant the fact that U.S. residents who enjoy the protections
of U.S. law ordinarily should be subject to the jurisdiction of
the courts).
Second, Alis after-acquired residence in this country is
not mere happenstance.
Id. at 15.
Id.
Id.
He has been
capacity,
he
received
extensive
military
In that
training,
on
are
laid
out
district court. 1
by
Ali
himself
in
declaration
to
the
where
training.
he
Id.
representative
completed
at
of
the
10.
six
months
of
intensive
In
1985,
he
was
Defense
Intelligence
military
invited
Agency
to
by
pursue
year,
before
returning
to
Somalia
in
July
of
1986.
Id.
Id. at 10.
This
did
not
Kiobel, 133
deny
that
prior
relationship,
such
as
the
as
part
of
the
touch
and
concern
inquiry.
Oral
Argument at 34:44.
Whatever the extent of the relationship between Ali and the
U.S.
military,
purported
it
touch
cannot
in
this
be
fairly
case
is
said
the
that
[t]he
happenstance
of
only
Alis
III.
The
majority
today
allows
U.S.
resident
to
avoid
the
v.
Bollinger,
798
F.3d
201,
219
(4th
United
Cir.
2015)
could
standing
in
undoubtedly
the
world,
broad
potentially
ramifications
disrupting
on
our
diplomatic
and
Id.
instant
foreign
case
policy,
that
but
risks
interference
rather,
providing
in
safe
United
States
haven
to
an
individual
States.
Partial
Suppl.
Supp.
of
torturer
Br.
for
was
found
United
Affirmance
at
residing
States
4,
as
Kiobel
in
the
Amicus
v.
Curiae
Royal
United
in
Dutch
These are
would
be
perceived
as
harboring
the
perpetrator,
to
the
protection
of
human
rights.
Id.
at
19
occurring
in
foreign
country
in
the
circumstances
of
the
United
Supp.
of
States,
including
the
promotion
of
Affirmance
at
4-5,
Kiobel,
133
S. Ct.
1659
It is
The fact
of the ATS claims and find that Warfaa has pleaded sufficient
facts showing that his claim touches and concerns the territory
29
of
the
United
States.
respectfully
30
dissent
from
the