Revolutionary look at the ATS...
In the Supreme Court’s only opinion regarding the Alien Tort Statute, Sosa v. Alvarez-Machain, the Court unanimously agreed that although the first House of Representatives modified the Senate’s draft of what eventually became the Judiciary Act of 1789, “it made hardly any changes to the provisions on aliens, including what became the ATS.” The Court did not point out any of these changes, but did comment that, because of the “poverty of drafting history” modern commentators have been forced to concentrate on the text of the ATS itself. Commentators have remarked on the innovative use of the word “tort” and the mixture of expansive and restrictive terms, “but despite considerable scholarly attention,” Justice Souter continued, “it is fair to say that a consensus understanding of what Congress intended has proven elusive.”
Jurists and commentators have also addressed the words “cognizance” and “sues,” and articles considering the ATS in light of Article III speculate about the type of cases the First Federal Congress might have had in mind when it used the phrase “tort only in violation of the law of nations.” But until now, the word that puts the “A” in ATS has been completely overlooked. No court or commentator has looked to the 1789 meaning of “alien,” or to the drafters’ understanding of, and possible intentions behind, that word.
When Justice Souter pointed out in Sosa that the first House made hardly any changes when it modified the Senate’s draft of the judicial bill, he could have said that the House made only one change: The bill the Senate submitted for House approval on Monday, July 20, 1789, read, in pertinent part, that the District Courts shall have jurisdiction “of all causes where a foreigner sues for a tort only in violation of the law of nations….” The house retained that sentence, except for changing “a foreigner” to “an alien”. The word “alien” did not appear in this part of the bill until the House put it there. This was not mere happenstance.
In 1789 relevant legislators and writers acknowledged a difference between the terms alien and foreigner. This paper details the changes made from Oliver Ellsworth’s initial handwritten draft of the first judiciary bill to the final product: the Judiciary Act of 1789. Defining “alien” and “foreigner” and related words using legal, international, and general lexicons available to the First Federal Congress (many of which have not been written about in this context), this paper details an understanding of the terms as used in relevant historical writings, and introduces the ramifications and possible reasons for the change from “foreigner” to “alien” in the judicial bill. I conclude that the Senate’s original intent was to make the ATS available to all persons born outside the United States, but because Congress narrowed the scope in the Judiciary Act of 1789 and later interpretations, the ATS should only be available to plaintiffs who are foreign-born residents of the United States.
((alien tort statute, ats, claims act, atca, ata, atc, legal history, first impression))
Link to Article: "Whether Foreigner or Alien: A New Look at the Original Language of the Alien Tort Statute"
Friday, April 4, 2008
Thursday, March 27, 2008
12 March 2008
Bowoto v. Chevron
US District Court for the Northern District of California
Nigerian villagers who are suing Chevron (for the last 9 years!) moved to withdraw half of their claims that the oil company was responsible for military attacks on protesters in the late 1990s.
Without any explanation--even to the judge during a later CMC--Ps' lawyers asked Judge Illston to dismiss claims by 25 Nigerians re: a January 1999 attack on villages near oil facilities in the Niger Delta where residents had violently protested against Chevron.
In their lawsuit, the plaintiffs had alleged that Nigerian troops--using a helicopter and boats supplied by Chevron--killed at least four unarmed people and burned two villages to the ground. Chevron had previously asserted that the dismissed claims were fraudulent, and now they're mysteriously gone...
See "Nigerians pull half of claims in Chevron suit" in the SF Chronicle, by Bob Egelko, Chronicle Staff Writer, Wednesday, March 12, 2008.
This article also says Ps lawyers claim the dismissed claims "are still part of a separate lawsuit in San Francisco Superior Court that is scheduled for trial in August."
In a later discussion with two of Ps counsel (Marco Simmons and Rick Hertz), they confirmed this, and claimed that although they had to dismiss these Ps because of a "conflict of interest," they'll certainly use the instances in the State proceedings in an effort to show that Chevron conducted a pattern of illegal actions in Nigeria--by using military police to suppress protests and increase oil profits.
US District Court for the Northern District of California
Nigerian villagers who are suing Chevron (for the last 9 years!) moved to withdraw half of their claims that the oil company was responsible for military attacks on protesters in the late 1990s.
Without any explanation--even to the judge during a later CMC--Ps' lawyers asked Judge Illston to dismiss claims by 25 Nigerians re: a January 1999 attack on villages near oil facilities in the Niger Delta where residents had violently protested against Chevron.
In their lawsuit, the plaintiffs had alleged that Nigerian troops--using a helicopter and boats supplied by Chevron--killed at least four unarmed people and burned two villages to the ground. Chevron had previously asserted that the dismissed claims were fraudulent, and now they're mysteriously gone...
See "Nigerians pull half of claims in Chevron suit" in the SF Chronicle, by Bob Egelko, Chronicle Staff Writer, Wednesday, March 12, 2008.
This article also says Ps lawyers claim the dismissed claims "are still part of a separate lawsuit in San Francisco Superior Court that is scheduled for trial in August."
In a later discussion with two of Ps counsel (Marco Simmons and Rick Hertz), they confirmed this, and claimed that although they had to dismiss these Ps because of a "conflict of interest," they'll certainly use the instances in the State proceedings in an effort to show that Chevron conducted a pattern of illegal actions in Nigeria--by using military police to suppress protests and increase oil profits.
11 March 2008
Ruiz v. Martinez, 2008 U.S. App. LEXIS 5289, 1-2 (5th Cir. 2008) UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
In holding that plaintiff abandoned any challenge to the district court's dismissal of his ATS claim by failing to raise the issue in his brief, the court affirmed the district court's judgment, and... denied Ps motions for a temporary restraining order (stay of deportation), a transfer or relocation to another facility, and a picture of the district court judge.
1 February 2008
Haji Bismullah v. Gates, 514 F.3d 1291 (D.C. Cir. 2008)
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
In an addendum, the court regurgitated Judge Randolph's concurrance in Al Odah v. United States, 321 F.3d 1134, 1149-50 (D.C. Cir. 2003):
"The United States or its officers may be sued only if there is a waiver of sovereign immunity. See, e.g., Dep't of Army v. Blue Fox, Inc., 525 U.S. 255 (D.C. Cir. 2003). We have held that the Alien Tort Act, whatever its meaning, does not itself waive sovereign immunity. Industria Panificadora, S.A. v. United States, 957 F.2d 886, 886 (D.C. Cir. 1992) (per curiam); Sanchez-Espinoza, 770 F.2d at 207; see Canadian Transp. Co. v. United States, 663 F.2d 1081, 1092 (D.C. Cir. 1980). The detainees therefore rely on the waiver provision in the Administrative Procedure Act, 5 U.S.C. § 702, which states: "An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity . . . shall not be dismissed . . . on the ground that it is against the United States. . . ."
Although relying on the APA's waiver for agencies, the detainees do not identify which "agency" of the United States they have in mind. They have sued the President in each case, but the President is not an "agency" under the APA and the waiver of sovereign immunity thus does not apply to him. See Franklin v. Massachusetts, 505 U.S. 788, 800-01, 112 S. Ct. 2767, 120 L. Ed. 2d 636 (1992); Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991). This leaves the military. The APA specifically excludes from its definition of "agency" certain functions, among which is "military authority exercised in the field in time of war or in occupied territory." 5 U.S.C. §§ 551(1)(G), 701(b)(1)(G); see id. §§ 553(a)(1) & 554(a)(4), exempting military "functions" from the APA's requirements for rulemaking and adjudication; United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371 (2d Cir. 1968) (Friendly, J.).
The district court ruled, in an alternative holding, that because of the military function exclusion, the APA does not waive sovereign immunity. Rasul v. Bush, 215 F. Supp. 2d 55 (D.D.C. 2002). I believe this is correct. Each of the detainees, according to their pleadings, was taken into custody by American armed forces "in the field in time of war." I believe they remain in custody "in the field in time of war."
It is of no moment that they are now thousands of miles from Afghanistan. Their detention is for a purpose relating to ongoing military operations and they are being held at a military base outside the sovereign territory of the United States. The historical meaning of "in the field" was not restricted to the field of battle. It applied as well to "organized camps stationed in remote places where civil courts did not exist," Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 274 (1960) (Whittaker, J., joined by Stewart, J., concurring in part and dissenting in part). To allow judicial inquiry into military decisions after those captured have been moved to a "safe" location would interfere with military functions in a manner the APA's exclusion meant to forbid. We acknowledged as much in Doe v. Sullivan, 938 F.2d 1370, 1380 (D.C. Cir. 1991), when then-Judge Ruth Bader Ginsburg stated for the court that the APA's military function exclusion applied to cases in which a court was asked to "review military commands made . . . in the aftermath of [] battle." It is also of no moment that the detainees were captured without Congress having declared war against any foreign state. "Time of war," as the APA uses it, is not so confined. The military actions ordered by the President, with the approval of Congress, are continuing; those military actions are part of the war against the al Qaeda terrorist network; and those actions constitute "war," not necessarily as the Constitution uses the word, but as the APA uses it. See Campbell v. Clinton, 203 F.3d 19, 29-30 (D.C. Cir. 2000) (Randolph, J., concurring in the judgment); Mitchell v. Laird, 488 F.2d 611, 613 (D.C. Cir. 1973). The detainees are right not to contest this point. To hold that it is not "war" in the APA sense when the United States commits its armed forces into combat without a formal congressional declaration of war would potentially thrust the judiciary into reviewing military decision-making in places and times the APA excluded from its coverage."
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
In an addendum, the court regurgitated Judge Randolph's concurrance in Al Odah v. United States, 321 F.3d 1134, 1149-50 (D.C. Cir. 2003):
"The United States or its officers may be sued only if there is a waiver of sovereign immunity. See, e.g., Dep't of Army v. Blue Fox, Inc., 525 U.S. 255 (D.C. Cir. 2003). We have held that the Alien Tort Act, whatever its meaning, does not itself waive sovereign immunity. Industria Panificadora, S.A. v. United States, 957 F.2d 886, 886 (D.C. Cir. 1992) (per curiam); Sanchez-Espinoza, 770 F.2d at 207; see Canadian Transp. Co. v. United States, 663 F.2d 1081, 1092 (D.C. Cir. 1980). The detainees therefore rely on the waiver provision in the Administrative Procedure Act, 5 U.S.C. § 702, which states: "An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity . . . shall not be dismissed . . . on the ground that it is against the United States. . . ."
Although relying on the APA's waiver for agencies, the detainees do not identify which "agency" of the United States they have in mind. They have sued the President in each case, but the President is not an "agency" under the APA and the waiver of sovereign immunity thus does not apply to him. See Franklin v. Massachusetts, 505 U.S. 788, 800-01, 112 S. Ct. 2767, 120 L. Ed. 2d 636 (1992); Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991). This leaves the military. The APA specifically excludes from its definition of "agency" certain functions, among which is "military authority exercised in the field in time of war or in occupied territory." 5 U.S.C. §§ 551(1)(G), 701(b)(1)(G); see id. §§ 553(a)(1) & 554(a)(4), exempting military "functions" from the APA's requirements for rulemaking and adjudication; United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371 (2d Cir. 1968) (Friendly, J.).
The district court ruled, in an alternative holding, that because of the military function exclusion, the APA does not waive sovereign immunity. Rasul v. Bush, 215 F. Supp. 2d 55 (D.D.C. 2002). I believe this is correct. Each of the detainees, according to their pleadings, was taken into custody by American armed forces "in the field in time of war." I believe they remain in custody "in the field in time of war."
It is of no moment that they are now thousands of miles from Afghanistan. Their detention is for a purpose relating to ongoing military operations and they are being held at a military base outside the sovereign territory of the United States. The historical meaning of "in the field" was not restricted to the field of battle. It applied as well to "organized camps stationed in remote places where civil courts did not exist," Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 274 (1960) (Whittaker, J., joined by Stewart, J., concurring in part and dissenting in part). To allow judicial inquiry into military decisions after those captured have been moved to a "safe" location would interfere with military functions in a manner the APA's exclusion meant to forbid. We acknowledged as much in Doe v. Sullivan, 938 F.2d 1370, 1380 (D.C. Cir. 1991), when then-Judge Ruth Bader Ginsburg stated for the court that the APA's military function exclusion applied to cases in which a court was asked to "review military commands made . . . in the aftermath of [] battle." It is also of no moment that the detainees were captured without Congress having declared war against any foreign state. "Time of war," as the APA uses it, is not so confined. The military actions ordered by the President, with the approval of Congress, are continuing; those military actions are part of the war against the al Qaeda terrorist network; and those actions constitute "war," not necessarily as the Constitution uses the word, but as the APA uses it. See Campbell v. Clinton, 203 F.3d 19, 29-30 (D.C. Cir. 2000) (Randolph, J., concurring in the judgment); Mitchell v. Laird, 488 F.2d 611, 613 (D.C. Cir. 1973). The detainees are right not to contest this point. To hold that it is not "war" in the APA sense when the United States commits its armed forces into combat without a formal congressional declaration of war would potentially thrust the judiciary into reviewing military decision-making in places and times the APA excluded from its coverage."
22 February 2008
Rodriguez Licea v. Curacao Drydock Co., 2008 U.S. Dist. LEXIS 13294 (D. Fla. 2008)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
Plaintiffs' principal claims are that the Defendant and its government agents and co-conspirators violated the laws of nations by trafficking Ps from Cuba to Curacao and by holding them and forcing them to work there. The main thrust of their action comes under the ATS and federal RICO laws. The only issue before this court was Defendant's motion to dismiss for forum non conveniens.
In declining to dismiss the action, the court said:
"Further, any interest that a forum in Curacao may have is countered by the public interest factors this jurisdiction has in the matter. This case concerns alleged violations of international human rights norms of concern to all nations and that the Alien Tort Statute empowered this Court to address. It concerns an alleged act of international trafficking. It concerns the human rights of people who have been Cuban citizens, an issue of concern to many members of this community. It concerns the foreign policy interests of the United States as expressed in the Cuban Democracy Act of 1992, and the interests of Congress expressed in the RICO statute. All these public interest factors militate in favor of this Court's retention of this matter."
Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Where Vietnamese nationals alleged that manufacturers were liable for violating international law norms prohibiting the use of poisoned weapons and infliction of unnecessary suffering, ATS claims failed because international norms did not prohibit use of materials that were only secondarily, and not intentionally, harmful to humans.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
Plaintiffs' principal claims are that the Defendant and its government agents and co-conspirators violated the laws of nations by trafficking Ps from Cuba to Curacao and by holding them and forcing them to work there. The main thrust of their action comes under the ATS and federal RICO laws. The only issue before this court was Defendant's motion to dismiss for forum non conveniens.
In declining to dismiss the action, the court said:
"Further, any interest that a forum in Curacao may have is countered by the public interest factors this jurisdiction has in the matter. This case concerns alleged violations of international human rights norms of concern to all nations and that the Alien Tort Statute empowered this Court to address. It concerns an alleged act of international trafficking. It concerns the human rights of people who have been Cuban citizens, an issue of concern to many members of this community. It concerns the foreign policy interests of the United States as expressed in the Cuban Democracy Act of 1992, and the interests of Congress expressed in the RICO statute. All these public interest factors militate in favor of this Court's retention of this matter."
Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Where Vietnamese nationals alleged that manufacturers were liable for violating international law norms prohibiting the use of poisoned weapons and infliction of unnecessary suffering, ATS claims failed because international norms did not prohibit use of materials that were only secondarily, and not intentionally, harmful to humans.
Friday, February 15, 2008
15 February 2008
American Isuzu Motors Inc. et al. v. Lungisile Ntsebeza, 07-919 (aka Khulumani v. Barclay Nat'l Bank Ltd., 509 F.3d 148 (2d Cir. 2007)--up for cert)
((see entry (below) for January 16, 2008))
WASHINGTON (AP) — Justice Department urges Supreme Court to stop lawsuit alleging companies aided apartheid
In a rare move, the Justice Department's Solicitor General Paul D. Clement urged the Supreme Court on Monday to reverse an October 2007 appeals court decision that allowed the apartheid suits to proceed. The ruling, by the 2nd U.S. Circuit Court of Appeals, "allows an unprecedented and sprawling lawsuit to move forward and represents a dramatic expansion of U.S. law," Clement wrote.
Business groups are concerned that the appeals court's decision expands the reach of the ATS, because it held companies could be held liable for "aiding and abetting" international law violations, in addition to actually committing them.
The case raises questions about how the United States deals with countries that abuse human rights. The government's brief argues that in some cases, such as apartheid-era South Africa, the United States may impose targeted sanctions while still allowing commerce in order to encourage reform. "Such policies would be greatly undermined" if corporations that subsequently do business in those countries are sued under the ATS, the Justice Department said.
Paul Hoffman, the lead attorney for some of the plaintiffs, said he will argue in a brief to the Supreme Court next month that it is too early in the litigation for the justices to weigh in. The lower court rulings have only addressed the question of whether to dismiss the suit. If the case is allowed to proceed, Hoffman said he will file a narrower complaint that will draw closer connections between the actions of the companies and the South African victims. That complaint will also likely name fewer companies, he said.
South Africa's government has repeatedly criticized the litigation as an infringement on its sovereignty, the Justice Department's brief said, and has asked U.S. courts to dismiss the case.
The court won't decide whether to take the case until late April at the earliest, and if it agrees to do so, oral arguments will take place during the court's next term, which begins in October.
For the complete article:
http://money.cnn.com/news/newsfeeds/articles/apwire/08e5088cf4cdadcc408f4a05344f2799.htm
To see the Gov't full argument:
http://www.scotusblog.com/wp/wp-content/uploads/2008/01/SA.pdf
WASHINGTON (AP) — Justice Department urges Supreme Court to stop lawsuit alleging companies aided apartheid
In a rare move, the Justice Department's Solicitor General Paul D. Clement urged the Supreme Court on Monday to reverse an October 2007 appeals court decision that allowed the apartheid suits to proceed. The ruling, by the 2nd U.S. Circuit Court of Appeals, "allows an unprecedented and sprawling lawsuit to move forward and represents a dramatic expansion of U.S. law," Clement wrote.
Business groups are concerned that the appeals court's decision expands the reach of the ATS, because it held companies could be held liable for "aiding and abetting" international law violations, in addition to actually committing them.
The case raises questions about how the United States deals with countries that abuse human rights. The government's brief argues that in some cases, such as apartheid-era South Africa, the United States may impose targeted sanctions while still allowing commerce in order to encourage reform. "Such policies would be greatly undermined" if corporations that subsequently do business in those countries are sued under the ATS, the Justice Department said.
Paul Hoffman, the lead attorney for some of the plaintiffs, said he will argue in a brief to the Supreme Court next month that it is too early in the litigation for the justices to weigh in. The lower court rulings have only addressed the question of whether to dismiss the suit. If the case is allowed to proceed, Hoffman said he will file a narrower complaint that will draw closer connections between the actions of the companies and the South African victims. That complaint will also likely name fewer companies, he said.
South Africa's government has repeatedly criticized the litigation as an infringement on its sovereignty, the Justice Department's brief said, and has asked U.S. courts to dismiss the case.
The court won't decide whether to take the case until late April at the earliest, and if it agrees to do so, oral arguments will take place during the court's next term, which begins in October.
For the complete article:
http://money.cnn.com/news/newsfeeds/articles/apwire/08e5088cf4cdadcc408f4a05344f2799.htm
To see the Gov't full argument:
http://www.scotusblog.com/wp/wp-content/uploads/2008/01/SA.pdf
Tuesday, February 5, 2008
5 February 2008
Bismullah v. Gates, 2008 WL 269001 (C.A.D.C.) (DC Cir. Feb. 1, 2008)
"The United States or its officers may be sued only if there is a waiver of sovereign immunity. See, e.g., Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999). We have held that the Alien Tort Act, whatever its meaning, does not itself waive sovereign immunity. Industria Panificadora, S.A. v. United States, 957 F.2d 886, 886 (D.C.Cir.1992) (per curiam); Sanchez-Espinoza, 770 F.2d at 207;see Canadian Transp. Co. v. United States, 663 F.2d 1081, 1092 (D.C.Cir.1980)."
Torrez v. Correctional Corp. of America (CV 07-1551-PHX-SMM, D. Ariz., 2008)
The only thing interesting in this United States District Court, D. Arizona, opinion is when the court asserts: "[T]he statute of limitation for ATS claims is 10 years."
"The United States or its officers may be sued only if there is a waiver of sovereign immunity. See, e.g., Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999). We have held that the Alien Tort Act, whatever its meaning, does not itself waive sovereign immunity. Industria Panificadora, S.A. v. United States, 957 F.2d 886, 886 (D.C.Cir.1992) (per curiam); Sanchez-Espinoza, 770 F.2d at 207;see Canadian Transp. Co. v. United States, 663 F.2d 1081, 1092 (D.C.Cir.1980)."
Torrez v. Correctional Corp. of America (CV 07-1551-PHX-SMM, D. Ariz., 2008)
The only thing interesting in this United States District Court, D. Arizona, opinion is when the court asserts: "[T]he statute of limitation for ATS claims is 10 years."
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