Today, the Supreme Court, in an opinion by Chief Justice Roberts, held that a citizen of a foreign country who is abused by a foreign corporation in a foreign country cannot sue in a U.S. Court under the Alien Tort Statute because, basically, multinational corporations are very different than pirates.
After Citizens United, we knew that corporations are people. We’re learning what kind of people they are (not pirates). Yet to be decided is whether you’d want to invite them to a dinner party. Or whether they’d accept.
How did we get here?
The Alien Tort Statute was passed in 1789. Here’s what it says:
The 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.
A number of Nigerians were living in Nigeria. A few Dutch and British corporations wanted to get the oil that was underneath the land the Nigerians were living on. The Nigerians protested some of the things that the corporations were doing. In response,
Throughout the early 1990’s, the complaint alleges, Nigerian military and police forces attacked [the Nigerians’] villages, beating, raping, killing, and arresting residents and destroying or looting property. Petitioners further allege that respondents aided and abetted these atrocities by, among other things, providing the Nigerian forces with food, transportation, and compensation, as well as by allowing the Nigerian military to use respondents’ property as a staging ground for attacks.
For whatever reason, the Nigerians decided to bring their lawsuit in a federal court in the U.S. Maybe it’s because they really liked our legal system after seeing Legally Blonde. Maybe they thought they could get a trip to New York out of filing there. Or, maybe they thought that government that ran the court systems seemed to be wholly captured by the corporations who, they think, hired that same government’s police and military to beat, rape, and kill them.
Who can say?
In any event, they filed suit in the U.S. under the Alien Tort Statute, because the alleged actions of the corporations seemed to be torts in violation of the law of nations.
And, today, the Supreme Court held that they can’t.
The Chief Justice first notes that there is a presumption that the laws of Congress do not apply outside of the United States. The reason makes sense – we don’t want our courts creating international conflicts or messing up the State Department’s spot.
So, unless a statute very clearly says it applies outside the United States, it doesn’t.
Great, that makes sense. But, the whole point of the Alien Tort Statute (abbreviated in the opinion as ATS, which, frankly, I think sounds like something there should be a pill to help with the symptoms of — I’m sticking with Alien Tort Statute) seems kind of extraterritorial.
It talks about aliens. It talks about the laws of nations. It was adopted before the presumption against extraterritorial application had been articulated by the Supreme Court.
Maybe this is as clear as Congress in 1789 thought it needed to get?
Not so much, wrote the Chief. As the Court said before, there are three points to the Alien Tort Statute: violation of safe conducts; messing with ambassadors; and piracy. The first two aren’t “necessarily” extraterritorial.
But what about piracy? Surely piracy is mainly extraterritorial. There could be, I suppose, piracy on the Potomac (rather than its banks), but most folks would agree that if you’re talking about piracy you’re talking about the high seas.
Here, the Chief wrote that pirates “may well be a category unto themselves.” Sort of like Bush v. Gore.
As the Chief explained, even though piracy happens outside of the United States, it happens in a lawless domain, a place where there is no government you can appeal to for help — kind of how those folks in Nigeria felt about their own government — so the Alien Tort Statute’s application to piracy doesn’t implicate the foreign policy concerns that animate the presumption against extraterritoriality.
According to the Court, the purpose of the Alien Tort Statute is just to allow folks to sue pirates and people who beat up ambassadors.
Of course, it’s a creature of Congress. If Congress wants to expand the Alien Tort Statute, it could do that. Right after it fixes the budget.
Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.