"The American Lawyer"
Michael D. Goldhaber and Daphne Eviatar
Talisman in Sudan
Presbyterian Church of Sudan v. Talisman Energy Inc.
The presbyterian church filed a class action in 2001 on behalf of all Christian and non-Muslim residents of southern Sudan. It alleges that the Canadian oil company, Talisman, assisted Sudan in a campaign of genocide, crimes against humanity, and war crimes. These efforts included the displacement, torture, rape, and killing of civilians, and the burning of their churches and villages, in part to make way for oil exploration. A Talisman subsidiary owned a one-quarter interest in the Greater Nile Petroleum Operating Company between 1998 and 2003. It eventually sold that stake to India's Oil and Natural Gas Corporation Ltd.-Videsh Limited (ONGC). A federal district court judge in New York denied Talisman's motion to dismiss, concluding that the U.S. Supreme Court in Sosa v. Alvarez-Machain had contemplated the existence of corporate liability under international law; the U.S. Court of Appeals for the Second Circuit affirmed. But in September 2006, following discovery, district court judge Denise Cote granted summary judgment for Talisman-concluding that plaintiffs had failed to "locate admissible evidence that Talisman has violated international law." Plaintiffs have appealed to the Second Circuit. As the only alien tort appeal in a summary judgment posture, Talisman might be well-positioned for Supreme Court review.
Plaintiffs counsel: Berger & Montague; Lieff Cabraser Heimann & Bernstein. Defense counsel: Lovells; Clifford Chance.
Chevron in Nigeria
Bowoto v. Chevron Corporation
Four nigerian villagers and their families claim that in May 1998, Chevron aided the Nigerian military in an attack on an offshore oil platform that killed two protesters and injured several others. According to the plaintiffs, unarmed protesters were peacefully negotiating when they were shot and beaten by Nigerian soldiers. The federal case seeks compensation for the victims and their families. A parallel state case seeks injunctive relief to prevent future abuses.
After rejecting motions for dismissal and summary judgment, federal district court judge Susan Illston scheduled the case for trial in San Francisco on October 27.
In an August 2007 ruling, Judge Illston found evidence that Chevron's personnel "were directly involved" in the attack; they transported soldiers to the platform despite knowing that the soldiers were "prone to use excessive force." Illston dropped a claim of "crimes against humanity" but left in the case claims for torture and cruel, inhuman, or degrading treatment under international human rights law, as well as claims under California and Nigerian law for wrongful death and assault and battery. "Nearly everything is in dispute," says Robert Mittelstaedt of Jones Day, who is lead trial counsel.
Plaintiffs counsel: Center for Constitutional Rights; EarthRights International; Hadsell Stormer Keeny Richardson & Renick; Traber & Voorhees; Siegel & Yee; Schonbrun DeSimone Seplow Harris & Hoffman; Law Offices of Judith Brown Chomsky.
Defense counsel: Jones Day.
Occidental in South America
Mujica v. Occidental Petroleum Corporation; Shiguago v. Occidental Petroleum Corporation
Luis alberto galvis mujica, a Colombian villager, alleges that Occidental instigated and guided a 1998 Colombian military bombing on the village of Santo Domingo. The attack killed 17 civilians, including three of his relatives. He argues that the raid was designed to protect the company's nearby oil pipeline from attacks by FARC guerillas thought to be hiding in the village. A federal district court judge in Los Angeles dismissed the case in 2005, after the U.S. Department of State said that it would interfere with U.S. foreign relations. An appeal to the U.S. Court of Appeals for the Ninth Circuit has been frozen pending the outcome of the Ninth Circuit appeals in the parallel alien tort case of Sarei v. Rio Tinto. In its first Sarei ruling, the Ninth Circuit held that the State Department's view should not govern. That ruling-which the plaintiffs believe should revive Mujica-is now on review en banc. Esther Mamallacta Shiguago and other Ecuadorean villagers allege that Occidental is complicit in human rights violations inflicted by paramilitaries that guard the company's oil pipeline in Ecuador. By far the youngest case on this list, it had little chance to develop before being stayed pending the en banc appeal in Sarei.
Plaintiffs counsel: International Rights Advocates; Conrad & Scherer; Schonbrun DeSimone Seplow Harris & Hoffman (for Mujica).
Defense counsel: Munger, Tolles & Olson.
Shell in Nigeria
Wiwa v. Royal Dutch Petroleum Company; Kiobel v. Royal Dutch Petroleum Company
Wiwa centers on Nigeria's 1995 execution of activist/poet/Nobel Peace Prize nominee Ken Saro-Wiwa and eight others who campaigned against environmental damage caused by Royal Dutch Shell plc's drilling in the Niger Delta region of Ogoniland. According to plaintiffs, Shell and its Nigerian subsidiary provided monetary and logistical support to the Nigerian crackdown on Ogoni demonstrations, and bribed witnesses to produce false testimony. The case was initially dismissed by New York federal district court judge Kimba Wood under forum non conveniens. It was reinstated by the U.S. Court of Appeals for the Second Circuit in 2000-on the rationale that the strong federal interest in adjudicating the law of nations trumped considerations of convenience. This March, Judge Wood dismissed the claim against Shell's subsidiary for lack of jurisdiction; the plaintiffs' appeal is now being briefed. Kiobel is a separate, broader case arising out of Shell's activities in Nigeria. It alleges that Shell supplied ammunition, transit, and logistical support for the Nigerian military's "Operation Restore Order in Ogoniland." Judge Wood dismissed claims for summary execution by military tribunals-while allowing claims for torture; cruel, inhuman, degrading treatment; crimes against humanity; aiding and abetting; and arbitrary arrest. Both sides have appealed. Kiobel and Talisman will each give the Second Circuit a new opportunity to clarify the confused doctrine of aiding and abetting liability.
Plaintiffs counsel: Center for Constitutional Rights (Wiwa); EarthRights International (Wiwa); Law Offices of Judith Brown Chomsky (Wiwa); Berger & Montague (Kiobel); Schonbrun DeSimone Seplow Harris & Hoffman (Kiobel).
Defense counsel: Cravath, Swaine & Moore.
Exxon in Indonesia
Doe v. Exxon Mobil Corporation
Eleven villagers from the separatist Indonesian province of Aceh allege that, to protect its natural gas operations there, Exxon knowingly employed brutal military groups who beat, shot, and tortured them. These crimes violated both the alien tort statute and Washington, D.C., tort law. As in several other alien tort cases, the U.S. Department of State argued that the suit undermined U.S. foreign policy. In 2005 federal district court judge Louis Oberdorfer in Washington, D.C., dismissed the alien tort claims on a narrow reading of aiding and abetting liability-but declined to dismiss the whole case under the political question doctrine. Last year, the U.S. Court of Appeals for the D.C. Circuit refused to immediately review the question of justiciability. In June the U.S. Supreme Court denied certiorari. In August, Judge Oberdorfer rejected Exxon's motion for summary judgment, finding trialworthy evidence that Exxon's Indonesian subsidiary helped to manage military security, and that the parent exerted control over its subsidiary in such matters. The case is potentially cleared for trial next year on state tort law claims.
Plaintiffs counsel: International Rights Advocates; Conrad & Scherer; Public Citizen Litigation Group; Cohen, Milstein, Hausfeld & Toll.
Defense counsel: Willkie Farr & Gallagher; O'Melveny & Myers; Paul, Weiss, Rifkind, Wharton & Garrison.
Rio in Papua New Guinea
Sarei v. Rio Tinto plc
Plaintiffs allege that Rio Tinto despoiled the pristine rain forest environment of Bougainville, Papua New Guinea, while operating the world's largest copper mine during the 1980s. After the islanders revolted against the central government in Papua New Guinea in 1990, forcing the mine to close, plaintiffs allege that Rio supported a ten-year military blockade of food and medicine. These actions caused the deaths of more than 10,000 Bouganvilleans. The complaint cites crimes against humanity, war crimes, racial discrimination, torture, and violations of the United Nations Convention on the Law of the Sea. Rio Tinto has stated that the allegations are wholly false, malicious, and defamatory. In 2002 federal district court judge Margaret Morrow in Los Angeles dismissed the case under the political question doctrine. In 2006, an initial panel of the U.S. Court of Appeals for the Ninth Circuit reinstated the case. The majority found that the district court judge had deferred unduly to the U.S. Department of State. The judges also rejected the need for a heightened pleading standard and, bucking precedent, contemplated recognition of certain environmental claims under the alien tort statute. Rio argued for reconsideration before an en banc panel of 11 Ninth Circuit justices in October 2007.
The political question may now be moot, because a new party came to power in Papua New Guinea, and withdrew its predecessor's objection to the litigation. The main remaining question is whether alien tort plaintiffs must exhaust all available legal options in their home forum before suing in the United States. Expect a close vote, a fractured opinion, and a certiorari petition by the loser.
Plaintiffs counsel: Hagens Berman Sobol Shapiro; Luvera, Barnett, Brindley, Beninger & Cunningham.
Defense counsel: Morrison & Foerster.
Drummond in Colombia
Romero v. Drummond Company, Inc.
A colombian labor union, and the families of three former union leaders, allege that Drummond hired paramilitaries to murder the three men in 2001, in order to intimidate the union. (Drummond is a family-owned Alabama company that operates coal mines in Colombia.)
In July 2007-in the first corporate alien tort case to be tried to completion-a federal jury in Birmingham exonerated Drummond of liability for war crimes under international customary law. An appeal to the U.S. Court of Appeals for the Eleventh Circuit has been filed by plaintiffs lawyer Terry Collingsworth. He is a partner in the Washington, D.C., office of Florida-based Conrad & Scherer and executive director of the nonprofit International Rights Advocates. Collingsworth says that the district court judge did not give him enough time, under international evidence-gathering rules, to obtain testimony from a witness in a Colombian prison who, according to Collingsworth, witnessed a senior Drummond executive pay a paramilitary representative for two of the murders. Collingsworth will also ask the court to note that a second key witness is newly available as a result of being extradited to the U.S. Plaintiffs think that a new trial is in order. Lead defense counsel William Jeffress, Jr., of Baker Botts responds that these witnesses' testimony is not credible, and that a trial cannot be postponed indefinitely until a witness becomes available. Jeffress argues that the difficulty of gathering foreign evidence is but another reason for not trying these cases in U.S. court. Oral argument is set for October 9.
Plaintiffs counsel: International Rights Advocates; Conrad & Scherer; Wiggins, Childs, Quinn & Pantazis.
Defense counsel: Baker Botts.
Wednesday, October 1, 2008
Wednesday, September 24, 2008
24 September 2008
Still Waiting for the Ninth Circuit En Banc Decision
Sarei v. Rio Tinto, PLC, 02-56256 / 02-56390
Subject Matter: Appeal of the district court’s dismissal of a class action complaint brought by current and former residents of the island of Bougainville in Papua New Guinea against a mining company under the Alien Tort Claims Act.
Three-Judge Panel Opinion: 487 F.3d 1193 (9th Cir. 2007)
Order Taking Case En Banc: 499 F.3d 923 (9th Cir. 2007)
Date of Order Taking Case En Banc: August 20, 2007
Status: Argued and submitted October 11, 2007
Members of En Banc Court: Mary M. Schroeder, Harry Pregerson, Stephen R. Reinhardt, Andrew J. Kleinfeld, Barry G. Silverman, M.M. McKeown, Marsha S. Berzon, Johnnie B. Rawlinson, Consuelo M. Callahan, Carlos T. Bea, Sandra S. Ikuta.
Holding: Not yet decided.Petition For Rehearing En Banc:
Sarei v. Rio Tinto, PLC, 02-56256 / 02-56390
Subject Matter: Appeal of the district court’s dismissal of a class action complaint brought by current and former residents of the island of Bougainville in Papua New Guinea against a mining company under the Alien Tort Claims Act.
Three-Judge Panel Opinion: 487 F.3d 1193 (9th Cir. 2007)
Order Taking Case En Banc: 499 F.3d 923 (9th Cir. 2007)
Date of Order Taking Case En Banc: August 20, 2007
Status: Argued and submitted October 11, 2007
Members of En Banc Court: Mary M. Schroeder, Harry Pregerson, Stephen R. Reinhardt, Andrew J. Kleinfeld, Barry G. Silverman, M.M. McKeown, Marsha S. Berzon, Johnnie B. Rawlinson, Consuelo M. Callahan, Carlos T. Bea, Sandra S. Ikuta.
Holding: Not yet decided.Petition For Rehearing En Banc:
Friday, April 4, 2008
04 April 2008
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"
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"
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.
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