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No.

______________

In The
SUPREME COURT OF THE UNITED
STATES
DOES 1-144, 1-976, 1-677, 1-254
Petitioners,
vs.
CHIQUITA BRANDS
INTERNATIONAL. INC. et al,
Respondents,
_____________
On Petition for Certiorari to the United States
Court of Appeals for the Eleventh Circuit
_____________
PETITION FOR A
WRIT OF CERTIORARI
______________
Paul David Wolf
Attorney for Does 1-144, 1976, 1-677, 1-254
P.O. Box 46213
Denver, CO 80201
(202) 431-6986

QUESTIONS PRESENTED FOR REVIEW


1. Whether Petitioners claims touch and concern the
territory of the United States with sufficient force to
displace the presumption against the extraterritorial
application of the Alien Tort Statute (ATS).
2. Whether the civil tort laws of Florida, New Jersey,
Ohio, and the District of Columbia apply to the
extraterritorial conduct of foreign tortfeasors with
respect to foreign victims.

LIST OF PARTIES
The 2,051 Doe Petitioners were plaintiffs and
appellees below, proceeding under pseudonyms in the
complaints filed in the Southern District of Florida in
Case Nos. 08-80465, 10-80652, 11-80404, and 11-80405.
Respondents Chiquita Brands International, and ten
Doe Defendants identified in the associated criminal
case, were defendants and appellants below.

ii

TABLE OF CONTENTS
TABLE OF AUTHORITIES ..........................

vii.

OPINIONS BELOW .......................................

1.

JURISDICTION .............................................

1.

CONSTITUTIONAL PROVISIONS,
STATUTE AND REGULATIONS
AT ISSUE .......................................................

1.

STATEMENT OF THE CASE ......................

4.

A. Facts Giving Rise To This Case ..............

4.

B. The District Court Proceedings ..............

6.

C. The Appellate Court Proceedings ...........

9.

REASONS WHY CERTIORARI


SHOULD BE GRANTED .............................

10.

I. Review is Warranted Because


the Opinion of the Majority Panel of
the Eleventh Circuit Conflicts with
this Courts Holding in Kiobel v.
Royal Dutch Petroleum ................................

10.

A. The Chiquita case touches and


concerns the territory of the United
States with "great force." .........................

11.

B. The Chiquita case could pass the


tests proposed in every concurring

iii

opinion. ......................................................

12.

C. The focus of concern of the Alien


Tort Clause was to provide a federal,
rather than state court forum for
cases such as this. ............................

14.

II. Review Is Warranted Because the


Eleventh Circuit's Decision Conflicts
with Opinions of the Second and
Fourth Circuits. ...........................................

19.

III. Review Is Warranted Because this


Case Should be Heard in a Federal, not
State Court. .................................................

25.

A. Erie requires federal courts to


apply state law extraterritorially,
as state courts do. ....................................

27.

B. The federal interest in foreign


relations is unique and exclusive. ..........

29.

C. The Alienage Jurisdiction


provisions of 28 USC 1332 were
meant to keep "foreign" cases in
federal court. ............................................

33.

D. A state court's power to hear


"foreign" cases is limited only by
the Due Process Clause of the US
Constitution. ............................................

35.

E. Federal common law should


apply to alien tort cases, to ensure

iv

uniformity and federal control over


foreign relations. ...................................

38.

CONCLUSION .........................................

41.

APPENDIX
1.28 U.S. Code 1332 ...............................

1.

2.28 U.S. Code 1350 note .......................

10.

3.50 U.S.C. 1705(b). ...............................

13.

4.31 C.F.R. 594.204. .................................

14.

.Judgment in criminal case, 07-cr-55.

15.

6.

Factual Proffer, March 19, 2007. ......

20.

7. Opinion and Order of the District


Court, Granting in Part and Denying
in Part Defendant's Motion to Dismiss.
6/3/2011. ...................................................

37.

8. District Court Order Granting in


Part and Denying in Part Defendant's
Motion to Dismiss New Actions. 3/27/2012.

132.

9. District Court Order Granting


Defendants Motion for Certification of
Interlocutory Appeal. 3/27/2012. ..............

140.

10.

Order Granting in Part and

Denying in Part Plaintiff's Motion for


Reconsideration. 3/27/2012. .......................

152.

11. 11th Circuit Order granting petition


for interlocutory review. 9/27/2012. ..........

159

12. 11th Circuit Opinion dismissing


appeal for lack of jurisdiction. 7/24/2014. ..

161

13. 11th Circuit Order denying panel


rehearing, 9/4/2014. ....................................

183

14. 11th Circuit Order denying rehearing


en banc, 10/2/2014. .....................................

186

15. 11th Circuit Order denying Appellee's


Motion to Stay Mandate Pending this
Court's Review. 11/3/2014. ..........................

188

vi

TABLE OF AUTHORITIES
CASES
* Al Shimari v. CACI Premier Tech. Inc.,
2014 WL 2922840 (4th Cir. June 30, 2014) .. 20-23.
Allstate Ins. Co. v. Hague, 449 U.S. 302
(1981) ............................................................. 36, 37.
American Insurance Association v.
Garamendi, 539 U.S. 396 (2003) .....................

31.

Askander v. Unity Resources Group,


Case No. 5:10-CV-00073-D. (E.D.N.C.) ...........

36.

Balintulo v. Daimler AG, 727 F.3d 174


(2d Cir. 2013) ................................................ 22, 24.
Baloco et al v. Drummond, No. 12-15268
(11th Cir. Sept. 23, 2014) ................................

23.

* Banco Nacional de Cuba v. Sabbatino,


376 U.S. 398, 426-427 (1964) ..........................

39.

Brady v. Xe Services,
Case No. 5:09-CV-449-BO (E.D.N.C.) .............

36.

Chowdhury v. Worldtel,
2014 WL 503037 (2d Cir. Feb. 10, 2014) ........

24.

Crosby v. National Foreign Trade Council,


530 U.S. 363 (1999) .........................................

30.

Doe v. Nestle, No. 10-56739

vii

(9th Cir. Sept. 4, 2014) ....................................

23.

Doe v. Exxon Mobil, 527 Fed.Appx. 7


(D.C. Cir. June 26, 2014) (not reported). ........

23.

Doe v. Exxon Mobil Corporation,


2914 WL 4746256 (D.D.C. Sept 23, 2014) ......

24.

Daobin v. Cisco Sys., Inc.,


2014 WL 769095 (D.Md. Feb. 24, 2014) .........

24.

EEOC v. Arabian American Oil Co.,


499 U.S. 244 (1991) .........................................

40.

* Erie R. Co. v. Thompkins, 304 U.S. 64


(1938) ............................................................. 27-29.
Filrtiga v. Pea-Irala, 630 F.2d 876
(2d Cir. 1980) ................................................. 35, 40.
Ford v. State, 330 Md. 682 (1993) .................

16.

Gang v. Zhizhen, N2013 WL 5313411


(D. Conn. Sept. 20, 2013) ...............................

25.

* Halberstam v. Welch, 705 F.2d 472


(D.C.Cir.1983) ................................................ 18, 39.
* International Shoe Co. v. Washington,
326 U.S. 310 (1945) ........................................ 37-38.
Kadic v. Karadzic, 70 F. 3d 232
(2nd Cir. 1995) ................................................
* Kiobel v. Royal Dutch Petroleum Co.,

viii

17.

133 S.Ct. 1659 (2013) .................................... 10-19.


Khulumani v. Barclays National Bank,
504 F.3d 254 (2nd Cir. 2007) .........................

17.

Klaxon Co. v. Stentor Elec. Mfg. Co.,


313 U.S. 487 (1941) ........................................

28.

Krishanti v. Rajaratnam, 2014 WL


1669873 (D.N.J. Apr. 28, 2014) .....................

24.

* Linder v. Portocarrero,
963 F.2d 332 (11th Cir. 1992) .........................

28.

* Mamani v. Snchez-Berzin, 07-22459CIV-COHN (S.D.F.L. May 20, 2014) .............

25.

* Mastafa v. Chevron, 2014 WL 5368853


(2nd Cir. Oct. 23, 2015) ................................. 18-20.
Matimak Trading Co. v. Khalily,
118 F.3d 76 (2nd Cir. 1997). ..........................

33.

Milliken v. Meyer, 311 U.S. 457 (1940). ........

37.

Mohammadi v. Islamic Republic of Iran


947 F. Supp. 2d 48 (D.D.C. 2013) ..................

25.

* Morrison v. Natl Austl. Bank Ltd.,


561 U.S. 247 (2010). ............................ 14-15, 39-40.
Mwani v. Bin Laden, 2013 WL 2325166
(D.D.C. May 29, 2013). ..................................
Norex Petroleum v. Access Indus. Inc.,

ix

24.

Case No. 650591/2011 (N.Y. Sup. Ct.) ..........

36.

Pennoyer v. Neff, 95 U.S. 714 (1877) ............

38.

Phillips Petroleum Co. v. Shutts,


472 U.S. 797 (1985) ........................................

37.

Pinkerton v. United States,


328 U.S. 640 (1946) ........................................

16.

Sadat v. Mertes, 615 F.2d 1176 (7th Cir.


1980) ...............................................................

33.

Sandstrom v. Montana, 442 U.S. 510 (1979)

16.

Sexual Minorities Uganda v. Lively,


2013 WL 4130756 (D. Mass. 8/14/2013) .......

24.

Sikhs For Justice Inc. V. Indian National


Congress Party, 2014 WL 1683798
(SDNY 2014). .................................................

24.

* Sosa v. Alvarez-Machain, 542 U.S. 692


(2004). ............................................................ 17-18.
* Swift v. Tyson, 41 U.S. 1 (1842) ................

38.

Tel-Oren v. Libyan Arab Republic,


726 F.2d 774 (D.C. Cir. 1984) .......................

17.

Tymoshenko v. Firtash, 2013 WL


4564646 (S.D.N.Y. Aug. 28, 2013). ..............

25.

United States v. Smith,


198 F.3d 377 (2d Cir. 1999) ...........................

17.

* Zschernig v. Miller, 389 U.S. 429 (1968) 30-31, 39.


CONSTITUTION AND STATUTES
U.S. Const. Art. IV, I (full faith and credit) ..

36.

U.S. Const. Art. III, 2, cl. 1. ......................

32-33.

U.S. Const. Amend XIV. 1. .......................

35-48.

18 U.S.C. 3231 ..........................................

34.

28 U.S.C. 1254(1) ......................................

1.

28 U.S.C. 1331 ..........................................

26, 34.

28 U.S.C. 1332 ............................................ 25-35.


28 U.S.C. 1350 ............................................ 10-25.
28 U.S.C. 1350 note ......................................

26.

Judiciary Act of 1789 (ch. 20, 1 Stat. 73) .......

15.

Dodd-Frank Act, Pub.L. 111203 (2010) .......

40.

OTHER
Blacks Law Dictionary (9th ed. 2009) ...........

23.

Moore's Federal Practice (2004) .....................

33.

Restatement of Conflict of Laws (1971) .........

29.

xi

Restatement (Third) of Foreign Relations


Law of the United States (1987) ....................

26.

William S. Dodge, The Historical Origins


of the Alien Tort Statute: A Response to
the Originalists, 19 Hastings Int'l &
Comp. L. Rev. 221 (1996). ..........................

15.

Katherine Florey, State Law, U.S.


Power, Foreign Disputes: Understanding
the Extraterritorial Effects of State Law
in the Wake of Morrison v. National
Australia Bank, B.U. L. Rev. 535 (2012) ..

36.

Henry J. Friendly, The Historic Basis of


Diversity Jurisdiction, 41 Harv. L.Rev.
483 (1927-28) ..............................................

34.

Kevin R. Johnson, Why Alienage


Jurisdiction? Historical Foundations
and Modern Justifications for Federal
Jurisdiction over Disputes Involving
Noncitizens, 21 Yale J. Int'l L. 1 (1996) ....

33.

Richard Painter, Douglas Dunham


& Ellen Quackenbos, When Courts
and Congress Don't Say What They
Mean: Initial Reactions to Morrison v.
Australia National Bank and to the
Extraterritorial Jurisdiction
Provisions of the Dodd-Frank Act,
20 Minn.. J. Intl. L. 1, 2-5 (2011) ...............

40.

Joseph B. Crace, Jr., Note, Gara-mending


the Doctrine of Foreign Affairs Preemption,

xii

90 Cornell L. Rev. 203, 207 (2004) ..............

31.

L. Henkin, Foreign Affairs and the United


States Constitution 164 (2d ed.1996) ..........

31.

xiii

OPINIONS BELOW
The decision of the court of appeals, reported
at 760 F.3d 1185 (11th Cir. July 24, 2014), is
reprinted in the Appendix (Appx.) at 161. The
district courts opinion, reported at 792 F. Supp. 2d
1301 (S.D. Fla. 2011), is reprinted at Appx. 37. The
district court also issued a separate opinion for a
similar group of plaintiffs, which is reprinted at
Appx. 132.
STATEMENT OF JURISDICTION
The court of appeals entered its judgment on
July 24, 2014, and denied petitions for panel
rehearing and rehearing en banc on July 24, 2014
and Sept. 4, 2014. Appx. at 161, 182. This Court has
jurisdiction under 28 U.S.C. 1254(1).
CONSTITUTIONAL PROVISIONS, STATUTES
AND REGULATIONS AT ISSUE
U.S. Const. art. III, 2, cl. 1.
The judicial Power shall extend to all Cases, in Law
and Equity, arising under this Constitution, the
Laws of the United States, and Treaties made, or

which shall be made, under their Authority;--to all


Cases affecting Ambassadors, other public Ministers
and Consuls;--to all Cases of admiralty and maritime
Jurisdiction;--to Controversies to which the United
States shall be a Party;--to Controversies between
two or more States;--between a State and Citizens of
another State;--between Citizens of different States;-between Citizens of the same State claiming Lands
under Grants of different States, and between a
State, or the Citizens thereof, and foreign States,
Citizens or Subjects.
U.S. Const. amend. XIV 1.
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States and of the state wherein they
reside. No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens
of the United States; nor shall any state deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.

28 U.S. Code 1332 - Diversity of citizenship;


amount in controversy; costs
(a) The district courts shall have original jurisdiction
of all civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a
foreign state, except that the district courts shall not
have original jurisdiction under this subsection of an
action between citizens of a State and citizens or
subjects of a foreign state who are lawfully admitted
for permanent residence in the United States and are
domiciled in the same State; ....
(see Appendix for full text)
28 U.S.C. 1350 - Aliens action for tort
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.
28 U.S.C. 1350
Protection Act.

note

(see Appendix for text)

Torture

Victim

STATEMENT OF THE CASE


A.

Facts Giving Rise to this Case.


This case arises from the actions of Chiquita

Brands International, Inc. in funding and arming


illegal armed organizations in Urab, Colombia. The
Doe Plaintiffs are family members of banana farm
workers, union members, political organizers, social
activists, and others targeted and killed by the
United

Self-Defense

Forces

of

Colombia

(Autodefensas Unidas de Colombia, or "AUC"), and


other Specially Designated Terrorist organizations.
Chiquita funded and armed these groups so that they
could wrest control of the region from left-wing
guerrillas to protect Chiquita's business interests.
The conspiracy to pay the AUC, and to
disguise the payments, was made by Chiquita's
Board of Directors in Cincinnati, Ohio. For at least
seven years, Chiquita paid the AUC locally in the
two regions of Colombia where it had bananaproducing operations. See Factual Proffer, Appx. at
23-27. The General Manager of Chiquita's whollyowned subsidiary, Banadex, met personally with
Carlos Castao, the leader of the AUC.

Factual

Proffer, Appx. at 24. From about 1997 through Feb.


2004, Chiquita made over 100 monthly payments to
the AUC, totaling over $1.7 million dollars.

Id.,

Appx. at 24-35. This was admitted in Chiquita's


Factual Proffer in the associated criminal case, 07-cr055 (D.D.C.), in which Chiquita pled guilty to the
felony of engaging in financial transactions with
specially designated terrorists. Id.
The procedures for making the payments
involved keeping a second set of books and making
cash payments through personal bank accounts. Id.
These payments were reviewed and approved by
senior executives of the corporation, including
officers and directors. Id. In-house attorneys for
Chiquita

conducted

an

investigation

into

the

payments, the results of which were discussed at a


meeting of the Audit Committee of Chiquita's Board
of Directors in September of 2000, and then by the
Board of Directors itself, which determined that the
company would continue making the payments. Id.
Chiquita was advised by the Department of Justice
that the payments were illegal. When Chiquita did
not

stop

making

them,

they

were

criminally

prosecuted, and pled guilty. Id. Chiquita also owned

and operated a private port in Colombia that the


AUC used to import thousands of machine guns, and
export tons of cocaine.

The drug and weapons

trafficking allegations were not admitted in the


factual proffer.
Chiquita knew of the AUC's status as a
Foreign

Terrorist

Organization,

made

monthly

payments against the advice of its own attorneys,


and continued paying the AUC even after being told
by the Department of Justice that the payments were
illegal.

The campaign resulted in some 10,000

deaths of suspected guerrilla supporters over a ten


year period. These murders violated not only U.S.
and Colombian tort laws, but also constituted
violations of international laws prohibiting war
crimes, extrajudicial executions, and crimes against
humanity.
B.

The District Court Proceedings.


On March 19, 2007, Chiquita Brands pled

guilty in U.S. District Court for the District of


Colombia to "engaging in transactions with a
specially designated global terrorist." Appx. at 15.
The deal included a $25 million fine and five years'

probation. No individuals were prosecuted. Because


it was a criminal case, no compensation was awarded
to the victims.
On June 5, 2007, undersigned counsel filed the
first of thirteen complaints against Chiquita, which
included Alien Tort Statute, Anti-Terrorism Statute,
and shareholder derivative cases.

These were all

transferred to the Southern District of Florida by the


Judicial Panel on Multi District Litigation.
On June 3, 2011, the District Court denied
Chiquita's motion to dismiss with respect to ATS
claims for extrajudicial killing, torture, war crimes,
and crimes against humanity, and Torture Victim
Protection Act claims for torture and extrajudicial
killing.1 Appx. at 94.

The District Court also

dismissed common law tort law claims brought


pursuant to 28 U.S.C. 1332. Id.
On March 27, 2012, the District Court issued
a series of orders, ruling that the court's opinion
applied to two new complaints alleging slightly
The District Court dismissed other claims for terrorism;
material support to terrorist organizations; cruel, inhuman, or
degrading treatment; violation of the rights to life, liberty and
security of person and peaceful assembly and association; and a
consistent pattern of gross violations of human rights, holding
that these claims were not actionable under the ATS.
1

different facts, Appx. at 132; granting Plaintiff's


motion for reconsideration of the dismissal of tort
claims based on Colombian law, Appx. at 152;
denying the same with respect to the tort laws of
Florida, New Jersey, Ohio, and the District of
Columbia,

and

granting

Chiquita's

motion

for

certification of three questions for interlocutory


review. Appx. at 140. Id.
The District Court certified three issues for
interlocutory review: whether state action must be
shown for each incident of murder or torture;
whether more facts must be pled to show the nexus
between each murder and the conflict; and whether
the elements of crimes against humanity were
adequately pled.2

Appx. at 150. In addition, the

District Court sua sponte requested interlocutory


review of the question whether the civil tort laws of
Florida, New Jersey, Ohio, and the District of
Columbia apply to the extraterritorial conduct of
foreign tortfeasors with respect to foreign victims.
Appx. at 151.
The petitioners don't address any of these questions in this
brief. Neither did the 11th Circuit, which ended its analysis
after finding that "[a]ll the relevant conduct in our case took
place outside the United States." Appx. at 166.
2

C.

The Appellate Court Proceedings.


The 11th Circuit granted permission for the

interlocutory appeal on September 27, 2012. Appx.


at 158. Upon joint motion of the parties, the appeal
was stayed pending the outcome of the Kiobel v.
Royal Dutch Petroleum Co. case in this Court. The
Kiobel case was decided on April 17, 2013.
On July 24, 2014, a divided panel of the 11th
Circuit held that it had no jurisdiction over the case,
citing Kiobel and finding that "[a]ll the relevant
conduct in our case took place outside the United
States."

Appx. at 166.

Judge Martin wrote a

detailed dissent, noting the split with the 4th Circuit


in Al Shimari v. CACI Premier Tech., Inc., 2014 WL
2922840 (4th Cir. June 30, 2014). Appx. at 173-181.
The majority also said that it did not reach the issue
raised sua sponte by the District Court - whether the
tort laws of U.S. states can apply extraterritorially or any of the issues originally raised by Chiquita in
the interlocutory appeal.3 Appx. at 164. The 11th
The 11th Circuit had discretion to hear the question certified
by the District Court on interlocutory appeal, and declined to
exercise it. There has been no final judgment, and diversity
claims based on Colombian law are still pending in the District
Court.
3

Circuit held that it did not have jurisdiction over the


action at all. Id. The appellate panel denied
rehearing on Sept. 24, 2014. Appx. at 166. Rehearing
en banc was denied on 10/2/2014.

Appx/ at 169.

Finally, on Nov. 3, 2014, the 11th Circuit denied


Petitioners' motion to stay the mandate pending the
decision of the instant petition. Appx. at 171.
REASONS WHY
CERTIORARI SHOULD BE GRANTED.
I.
Review is Warranted Because the Opinion
of the Majority Panel of the Eleventh
Circuit Conflicts with this Courts Holding
in Kiobel v. Royal Dutch Shell.
Under Kiobel v. Royal Dutch Petroleum Co.,
569 U.S. __, 133 S. Ct. 1659 (2013), the Petitioners
must show that the case touches and concerns the
territory of the United States with sufficient force to
displace the presumption against the extraterritorial
application of the Alien Tort Statute. 133 S. Ct. at
1669. Mere corporate presence in the United States
does not suffice. Id.

10

Kiobel

was

"foreign-cubed"

case,

with

plaintiffs and defendants domiciled abroad, and all


relevant conduct occurring abroad. The only contact
of the Kiobel case with the United States was that
the defendant had a corporate presence and did
business

in

the

United

States.

Chiquita

is

significantly different and can pass any of the tests


articulated in the Kiobel case.
A.

The Chiquita case touches and concerns the


territory of the United States with "great force."
The Chiquita case is distinguishable from

Kiobel in three important ways: (1) Chiquita is


incorporated and headquarted in the United States;
(2) the conspiracy to pay the AUC, and to disguise
the payments, was made by Chiquita's management
in the United States,4 and (3) Chiquita was
criminally prosecuted in the United States for the
same conduct. Corporate decisions of Chiquita were
Chiquita's intent is what ties this case to the United States.
Chiquitas U.S. management not only made the decision to pay
the AUC and devised a fraudulent accounting scheme to hide
the payments; they did so in exchange for the AUCs protection
of their farms. Proximate cause is shown by the local nature of
the payments, which were made to specific AUC units
protecting Chiquita's farms. These payments originated in the
United States.
4

11

made in the United States and were the basis of its


admitted criminal liability.
Appx. at 20-36.

See Factual Proffer,

The Court should consider these

substantial contacts with the United States as


conferring jurisdiction.

As Judge Martin put it in

her dissent, this case touches and concerns the


territory of the United States with "great force."
Appx. at 180.
The 11th Circuit found these contacts to be
irrelevant. Its understanding of Kiobel is that only
where the place of injury is on U.S. soil can a case be
heard in federal courts. This is the error that the
Supreme Court needs to correct.
B.

The Chiquita case could pass the


proposed in every concurring opinion.

tests

Aside from the "touch and concern test" of the


majority, three concurring opinions were written in
Kiobel. The Chiquita case could satisfy any of these
tests as well. It easily passes the test proposed by
Justices Breyer, Ginsberg, Sotomayor and Kagan.
According to their view, there would be jurisdiction
under the ATS whenever (1) the alleged tort occurs
on American soil, (2) the defendant is an American

12

national, or (3) the defendants conduct substantially


and

adversely

affects

an

important

American

national interest, including an interest in preventing


the United States from becoming a safe for torturers
or other common enemies of mankind.

Kiobel,

Breyer, J. concurring. It is undisputed that Chiquita


is a U.S. corporation, and Justice Breyer's test is
easily met with this fact alone.5 It is also clear that
the decision to pay the AUC was made on US soil,
and that this decision was contrary to the interests of
the United States.

Both these facts are apparent

from Chiquita's criminal plea. Appx. at 21-27.


In

his

own

concurring

opinion,

Justice

Kennedy wrote that he would also support a more


expansive view of the ATS if presented with the
appropriate facts. 133 S. Ct. at 1669. He noted that
the majority in Kiobel was careful to leave open a
number of significant questions regarding the reach
The two other criteria are not hard to argue. Our national
policy is to discourage American corporations from funding
foreign terrorist organizations, and the effect on America's
interests is shown by the criminal prosecution. And although
the murders themselves did not occur on US soil, the agreement
to pay the AUC was made in the US, and all payments (overt
acts) came from the U.S. This would be actionable as a
conspiracy even if only nominal harm had occurred in
Colombia.
5

13

and interpretation of the Alien Tort Statute.

Id.

Since the Chiquita case represents a common, if not


a paradigm fact pattern, the Court is now in a
position to reconcile a very unsettled area of law.
Finally, although the concurring opinion of
Justices Alito and Thomas was the most restrictive,
the Chiquita case could still pass their test. Relying
on Morrison v. Natl Austl. Bank Ltd., 561 U.S. 247
(2010), these justices concluded that the analysis
should begin with the "focus of concern," or
legislative intent, of the statute in question.
Morrison,

Justice

presumption

Scalia

against

had

described

extraterritoriality

as

In
the
a

"longstanding principle of American law" which


"would be a craven watchdog indeed if it retreated to
its kennel whenever some domestic activity is
involved in the case. Id. at 2880, 2884. (emphasis in
original) However, rather than analyzing the degree
or kind of domestic activity required, the Court found
that jurisdiction turned on "whether the purchase or
sale is made in the United States, or involves a
security listed on a domestic exchange." Id. at 2886.
This was because the "focus of concern," or legislative
intent of the Securities and Exchange Act, was to

14

regulate

conduct

on

domestic,

not

foreign,

exchanges.6
C.

The focus of concern of the Alien Tort Clause


was to provide a federal, rather than state
court forum for cases such as this.
The Court has in recent years placed a heavy

emphasis on the textual analysis of statutes,


avoiding the consideration of legislative intent. The
text of the ATS consists of a mere 33 words, and no
legislative history of the ATS exists. The best
scholarship in this field suggests that the purpose of
the Alien Tort Clause, as it was known in 1789, was
to provide a federal, rather than state court forum for
cases involving alien tort claims.7 By definition, they
concern foreign states and foreign policy, and it was
not seen as desirable for each state's courts to act
independently. The Alien Tort Clause was a part of
the Judiciary Act of 1789, which created our federal
As Justice Stevens noted in his concurring opinion in
Morrison, Morrison was a "foreign-cubed" case with "(1) foreign
plaintiffs suing (2) a foreign issue in an american court for
violations of American securities laws based on securities
transactions in (3) foreign countries. 130 S. Ct. at 2894 n. 11
(Stevens, J., concurring)
7 See William S. Dodge, The Historical Origins of the Alien Tort
Statute: A Response to the Originalists. 19 Hastings Int'l &
Comp. L. Rev. 221 (1996).
6

15

court system, and should be read in the context of


that statute.
In Justice Alito's view, the "focus of concern"
of this clause was to provide a forum only for cases
where the domestic conduct is itself sufficient to
constitute a violation of international law. We would
argue that Chiquita's domestic conduct, in planning,
funding and executing this conspiracy, did violate
international law. Co-conspirators are liable for the
unintended, but foreseeable consequences of their
criminal agreement. So long as the partnership in
crime continues, the partners act for each other in
carrying it forward, and an overt act of one partner
may be the act of all without any new agreement
specifically directed to that act. Pinkerton v. United
States, 328 U.S. 640, 647 (1946). If the unlawful
agreement

contemplated

the

type

of

offense

committed in the substantive acts, the conspirators


are liable. Id. More basically, a person is presumed
to intend the natural and probable consequences of
his acts.

Sandstrom v. Montana, 442 U.S. 510

(1979); Ford v. State, 330 Md. 682 (1993) ("where the


means employed to commit the crime against a
primary victim create a zone of harm around that

16

victim, the factfinder can reasonably infer that the


defendant intended that harm to all who are in the
anticipated zone") As Judge Katzmann observed in
his concurring opinion in Khulumani v. Barclays
National Bank, 504 F.3d 254 (2nd Cir. 2007), aiding
and abetting "does not constitute a discrete criminal
offense but only serves as a more particularized way
of identifying persons involved" in the underlying
offense. 504 F. 3d at 280, quoting United States v.
Smith, 198 F.3d 377, 383 (2d Cir. 1999).
The 2nd Circuit also recognized the role of
domestic law in Kadic v. Karadzic, 70 F. 3d 232 (2nd
Cir. 1995) when it held that the "law of nations
generally does not create private causes of action to
remedy its violations, but leaves to each nation the
task of defining the remedies that are available for
international law violations." 70 F.3d at 246. Federal
courts may exercise their common-law discretion to
decline to provide a cause of action for a violation of
international law.

Sosa v. Alvarez-Machain, 542

U.S. 692, 732-33 (2004); see Tel-Oren v. Libyan Arab


Republic, 726 F.2d 774, 778 (D.C. Cir. 1984)
(Edwards, J., concurring) (explaining that each
nation may choose whether to impose civil liability

17

for violations of international law).

The federal

common law standard for aiding and abetting, set


forth in Halberstam v. Welch, 705 F.2d 472
(D.C.Cir.1983), isn't derived from international law.
The theory of secondary liability need not also
be "specific, universal and obligatory" under Sosa v.
Alvarez-Machain, 542 U.S. at 732.8

The domestic

enforcement of a substantive norm is distinct from


the norm itself.

It would also be unreasonable to

expect every country in the world to have identical


concepts of conspiracy and aiding and abetting.
In Mastafa v. Chevron, 2014 WL 5368853 (2nd
Cir. Oct. 23, 2015) the Second Circuit applied the
minority approach of Justices Alito and Thomas in
Kiobel, 133 S.Ct. at 1669, but held that even where
plaintiffs are injured abroad, aiding and abetting
within the United States may displace Kiobel's
Footnote 20 in Sosa stated that "A related consideration is
whether international law extends the scope of liability for a
violation of a given norm to the perpetrator being sued, if the
defendant is a private actor such as a corporation or
individual.." (citations omitted) We understand this to refer to
whether a norm like torture could be applied to a private party,
or whether it would simply be assault and battery. The
footnote does not, as some have suggested, mean that concepts
of secondary liability should be drawn from international law.
This would expand the reach of international law into the U.S.,
at the expense of the federal common law.
8

18

presumption against extraterritoriality.

Mastafa,

2014 WL 5368853 at *10. This shows a split with the


11th Circuit over whether the place of injury is
dispositive in determining jurisdiction.
II.
Review is Warranted Because the Eleventh
Circuit's Decision Conflicts with Opinions
of the Second and Fourth Circuits
In Mastafa, the Second Circuit considered
whether paying surcharges for oil purchased from
the Iraqi state oil company constituted aiding and
abetting alleged human rights abuses by the Iraqi
military.

In contrast to the 11th Circuit, the 2nd

Circuit didn't look to the place of injury and apply


the rule of lex loci delecti. It found that the relevant
conduct, for the purposes of Kiobel, included not only
the injury itself, but also "conduct that constitutes
aiding and abetting another's violation of the Law of
Nations." Id. at *10. Since the financial transactions
in Mastafa originated in the United States, the
presumption was displaced. Id.
In Mastafa, however, the plaintiffs had failed
to allege the requisite mens rea, that by paying these

19

subsidies, the Defendant intended that the Iraqi


army violate international law.

Id. at *17.

In

Chiquita, a terrorist group was paid three cents per


box of bananas shipped and allowed the use of a
private port to import thousands of machine guns
from Central America, in a campaign to defeat the
leftist FARC guerrillas.
Court

has

already

In Chiquita, the District

found

that

the

Plaintiffs

sufficiently alleged the mens rea of intent or purpose.


Appx. at 83-85.
The 11th Circuit's decision also creates a split
with the 4th Circuit over the same issue: what
amount and type of domestic conduct, if any, would
be sufficient to displace the presumption against
extraterritoriality? In Al Shimari v. CACI Premier
Tech. Inc., 2014 WL 2922840 (4th Cir. June 30,
2014), there was jurisdiction under the ATS for the
torture of prisoners in Abu Ghraib, Iraq, by a private
military contractor. The Fourth Circuit held that the
case touched and concerned the territory of the
United States because (1) CACI is a US corporation;
(2) the employees who allegedly tortured the
prisoners were U.S. citizens; and (3) the injuries

20

occurred on a U.S. military facility pursuant to a


contract with the U.S. Government.9 Id. at *30-31.
Although

the

actual

perpetrators

in

Al

Shimari were Americans, and the injuries occured on


an American base in Iraq, in most other respects the
Chiquita case has more facts linking the actions of
Chiquita to the United States. These links were so
substantial that Chiquita was criminally prosecuted
for its conduct in a federal District Court. The
application of US criminal law abroad is more likely
to interfere with the sovereignty of another State
than a civil case between private parties. More
importantly, though, Chiquita's domestic conduct
supporting the AUC was intentional, while in Al
Shimari, only domestic negligence was alleged:
[I]n the command vacuum at Abu Ghraib,
CACI interrogators operated with little to no
supervision and were perceived as superiors
by United States military personnel. U.S.
military personnel allegedly carried out orders
issued by the CACI civilian interrogators to
soften up and set conditions for the abuse of
particular detainees, contrary to the terms of

The Fourth Circuit didn't find that the Abu Ghraib prison was
effectively within the territory of the United States. It counted
CACI's relationship with the U.S. government as a "contact" of
the case with the U.S. Id.
9

21

CACIs contract
government.

with

the United States

Id. at *8. (citations omitted) There is no allegation of


anyone in the US even knowing about the torture.10
This is a negligence standard with two levels of
secondary liability. CACI is liable for the conduct of
its employees in Iraq, who were perceived by the
military personnel to be their superiors, and it is the
U.S. military personnel who inflicted the injuries.
The only conduct to have occurred in the United
States was signing a contract with the U.S.
government.
In Chiquita, the Board of Directors in Ohio
agreed to pay a terrorist organization on a monthly
basis for at least seven years, falsified its accounting
records in Ohio to hide the fact, and then pled guilty
when prosecuted in the District of Columbia. The
illegal payments originated in the United States.
Notably, the instant case is not one in which the plaintiffs
seek to hold an American company vicariously liable for the
unauthorized actions of its agents overseas. See, e.g., Balintulo
v. Daimler AG, 727 F.3d 174, 192 (2d Cir. 2013) (Kiobel
presumption is not displaced where an American corporation is
vicariously liable for actions taken within South Africa by a
South African subsidiary). Instead, the Petitioners seek to hold
Respondent liable for its own conduct within the territory of the
United States.
10

22

Chiquita's domestic conduct was far more than


negligent.
The Fourth Circuit also observed that the
touch and concern language requires a fact-based
analysis to determine whether particular ATS claims
displace the presumption.

Al Shimari, 2014 WL

2922840 at *24. It interpreted the Supreme Court's


use of the word "claim" to include the citizenship of
the parties and the various contacts of the case with
the United States. Id., citing Blacks Law Dictionary
281 (9th ed. 2009) (defining claim as the aggregate
of operative facts giving rise to a right enforceable by
a court).
This also appears to be the understanding of
two other circuits, which remanded ATS cases with
instructions to grant leave to amend complaints. Doe
v. Nestle, No. 10-56739 (9th Cir. Sept. 4, 2014)
(remanding with order to grant leave to amend); Doe
v. Exxon Mobil, 527 Fed.Appx. 7 (D.C. Cir. June 26,
2014) (not reported).11 District Courts in Maryland,

The Eleventh Circuit itself analyzed the contacts of an ATS


case with the U.S. in Baloco et al v. Drummond, No. 12-15268
(11th Cir. Sept. 23, 2014), albeit in a hypothetical way, since the
element of intent was never alleged with respect to anyone
inside the United States.
11

23

New

Jersey,

the

District

of

Columbia,

Massachusetts are using the same analysis.12

and
In

Does et al v. Exxon Mobil Corporation, 2014 WL


4746256 (D.D.C. Sept 23, 2014), the D.C. District
Court held that leave to amend wouldn't necessarily
be futile, despite it being uncontested that the place
of injury in that case was in Indonesia. Id. at *25-26.
Cases not finding jurisdiction have lacked significant
contacts with the territory of the U.S.13

See Daobin v. Cisco Sys., Inc., 2014 WL 769095, at *9 (D.Md.


Feb. 24, 2014) (observing that Kiobel may be distinguishable
because (1) Cisco is an American company; and (2) plaintiffs
alleged that Cisco's conduct took place predominantly, if not
entirely, within the United States); Krishanti v. Rajaratnam,
2014 WL 1669873 at *10 (D.N.J. Apr. 28, 2014) (finding
jurisdiction for ATS claims brought against U.S. citizens and a
U.S. organization who organized and funded terrorist bombings
in Sri Lanka); Mwani v. Bin Laden, 2013 WL 2325166 (D.D.C.
May 29, 2013). (jurisdiction for claim brought by foreign
nationals injured in a foreign terrorist attack against U.S.
embassy in a foreign state); Sexual Minorities Uganda v. Lively,
2013 WL 4130756 (D. Mass. Aug. 14, 2013) (finding jurisdiction
to hear ATS claim brought against U.S. citizen who assisted,
managed, and advised a foreign nations violations of
international law).
13 See Balintulo v. Daimler AG, 727 F.3d 174 (2nd. Cir. 2013)
(finding no jurisdiction where the only contact with the U.S.
was that the defendant was "doing business in that state" and
therefore subject to general personal jurisdiction); Chowdhury
v. Worldtel, 2014 WL 503037 (2d Cir. Feb. 10, 2014) (no
jurisdiction for claims brought by Bangladeshi plaintiff against
Bangladeshi business and citizen for torture occurring in
Bangladesh); Sikhs For Justice Inc. V. Indian National
Congress Party, 2014 WL 1683798 (SDNY 2014) (no jurisdiction
12

24

In Mamani v. Snchez-Berzin, 07-22459-CIVCOHN (S.D.F.L. May 20, 2014), the Southern


District of Florida surveyed these cases, and found
that the dismissed cases all had one thing in common
- they all lacked a significant connection to the
United States. Id. at *17-22. The Chiquita case is
an outlier in this rapidly developing field of postKiobel law.
III.
Review is Warranted Because this Case
Should be Heard in a Federal, not State Court.
The 11th Circuit declined to consider the issue
of whether state tort laws may apply outside of the
territory of the United States. Appx. at 164. This
was raised sua sponte by the District Court, in
addition to the three questions presented by the
for claims brought by Indian citizens against an Indian political
party for conduct taking place in India); Tymoshenko v. Firtash,
2013 WL 4564646 (S.D.N.Y. Aug. 28, 2013) (no jurisdiction for
claims brought by former Ukrainian prime minister against a
Swiss corporation that allegedly bribed Ukrainian officials);
Mohammadi v. Islamic Republic of Iran 947 F. Supp. 2d 48, 65
(D.D.C. 2013) (no jurisdiction for claims of extrajudicial killing
and torture in Iran brought by relatives of an Iranian citizen
against the Islamic Republic of Iran and the Revolutionary
Guard); Gang v. Zhizhen, N2013 WL 5313411 (D. Conn. Sept.
20, 2013) (no jurisdiction for claims brought by Chinese citizens
and residents against a Chinese media executive who promoted
the torture of Falun Gong practioners in China).

25

Respondent for certification on interlocutory appeal.


Appx. at 150.14
The Petitioners' state law tort claims, arising
from the common law of Florida, New Jersey, Ohio,
the District of Columbia, and the country of
Colombia, are based on federal diversity jurisdiction
pursuant to 28 U.S. Code 1332. In contrast, the
claims pursuant to the Alien Tort Statute, 28 U.S.
Code 1350, and Torture Victim Protection Act , 28
U.S. Code 1350 note, are federal claims brought
under 28 U.S. Code 1331. The federal question and
diversity

claims

have

completely

different

jurisdictional bases.
The Petitioners in this action are all citizens
and residents of Colombia, while the Respondent is a
US corporation, formerly headquartered in Ohio, and
now in North Carolina.

The Respondent has no

The District Court's analysis of whether the laws of a state


may have extraterritorial application was based on 402, 404
of the Restatement (Third) of Foreign Relations Law of the
United States (1987). Appx. at 122-123. These sections only
apply to public, not private law, and are inapplicable here. See
Restatement pt. IV, ch. 1, subch. A, Intro. Note. In addition,
402 (2) provides jurisdiction for "the activities, interests, status,
or relations of its nationals outside as well as within its
territory." There is a domestic nexus to the case sufficient to
provide jurisdiction to adjudicate private tort actions so long as
there is personal jurisdiction. Restatement 421.
14

26

corporate presence in Colombia. Since the claims are


for wrongful death (and a few personal injury cases
involving very serious injuries), the amount in
controversy

between

each

Plaintiff

and

the

Defendant exceeds $75,000.


While claims brought pursuant to federal
statutes may be limited in extraterritorial effect by
the "presumption against extraterritoriality," no
comparable presumption applies to state common
law. States can and do apply their laws to conduct
occurring outside of their territories, including
outside of the territory of the United States.15 When
hearing these claims in diversity, federal district
courts should do the same.
A.
Erie requires federal courts to apply
state law extraterritorially, as state courts do.

In international cases, conflicts may arise between the laws of


a state and a foreign nation, or between federal law and the law
of a foreign nation. Both are problems of "legislative
jurisdiction," as choice of law is sometimes called. Either kind
of case can be brought in either federal or state court. There is
a difference, however, in how federal and state laws are applied.
In deciding whether to apply federal law, a court looks at the
contacts with the United States. If they are too slim, the
federal claim is dismissed. On the other hand, courts decide
state choice of law issues by comparing two laws and deciding
which one to apply.
15

27

In Erie R. Co. v. Thompkins, 304 U.S. 64


(1938), the Court addressed a situation where two
different rules of law were potentially applicable,
depending on whether a federal or state court heard
the case. Since Erie, federal courts must follow state
court decisions on matters properly cognizable by the
states.16 Id. If state courts have already decided to
apply their common law to foreign conduct, then Erie
should require federal courts to follow suit and also
apply state law extraterritorially.17
If the federal courts do not hear theses cases
in diversity, foreign plaintiffs will file them in state
courts. State courts are courts of general jurisdiction
which do not rely on any federal statute for
jurisdiction. If different choice of law rules are used,
the same case could be decided under different
substantive law, depending on which state court had

In Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941),
the Court explained its reasoning in Erie. To allow federal and
state courts to follow different rules "would do violence to the
principle of uniformity within a state, upon which the [Erie]
decision is based." 313 U.S. at 496.
17 See Linder v. Portocarrero, 963 F.2d 332, 333, 336 (11th Cir.
1992) (torture and murder in Nicaragua actionable in Florida
under Florida state tort law).
16

28

the case.18 This would generally mean that states


using the rule of lex loci delecti would apply foreign
law, and those following the Restatement of Conflict
of Laws (1971) would follow forum law, unless there
was a real conflict.
Just

as

Erie

rejected

different

results

depending on whether a case was filed in state or


federal court, the Court should also reject having the
application of U.S. or foreign law (and the protection
of exclusively federal interests) depend on the
policies of the state where the case was filed. While
this may be commonplace in litigation and often
leads to "forum shopping," the problem is of a
different kind when foreign relations are involved.
B.

The federal interest in foreign relations is


unique and exclusive.

Choice of laws is determined issue by issue. In a case like


Chiquita, we would expect different questions to be decided
using different bodies of law. For example, in order to
determine who is a legal heir, we would look at Colombian
probate law. We would use the Federal Rules of Evidence in
the trial. We would use international law to determine whether
the Petitioners stated a claim for crimes against humanity.
And so on. At this stage, the only issue is that of the
jurisdictional reach of state tort law.
18

29

The power to conduct foreign affairs is an


exclusively federal interest. Zschernig v. Miller, 389
U.S. 429 (1968); Crosby v. National Foreign Trade
Council, 530 U.S. 363, 374 n.8 (1999). This
is implicated in the instant case.

interest

For example,

Colombia indicted several Chiquita employees and


requested their extradition. Should this case really
be heard in Florida State Court?
Although Chiquita hasn't ever raised the
defense of foreign affairs preemption, the doctrine
deserves some discussion. A state may violate the
U.S.

Constitution

by

passing

law

that

impermissibly intrudes on the federal government's


power over foreign affairs. Zschernig v. Miller, 389
U.S. at 440-41. In Zschernig, the State of Oregon
had passed a law providing for escheat in probate
cases where a nonresident alien was to inherit
property. Id. at 430-431. The Court found that the
escheat clause amounted to "confiscation," which
would negatively impact our relations with Germany,
and violate the Just Compensation Clause of the
Fifth Amendment
In the decisons followng Zscherning, scholars
identified

two

categories

30

of

foreign

affairs

preemption: statutory and dormant. See Joseph B.


Crace, Jr., Note, Gara-mending the Doctrine of
Foreign Affairs Preemption, 90 Cornell L. Rev. 203,
207 (2004).

Statutory preemption occurs when a

federal law plainly "occupies the field" of legislation


relating to the subject matter.

Id. Dormant

preemption refers to when the federal government


has taken no clear action on the subject matter. Id.
The Supreme Court has neither endorsed nor
rejected the concept of dormant preemption. Some
support can be found in the dissent of Justice
Ginsburg in American Insurance Association v.
Garamendi, 539 U.S. 396, 439 (2003), where she
wrote that it "resonates most audibly" when a state
action reflect[s] a state policy critical of foreign
governments and involve[s] sitting in judgment on
them. 539 U.S. at 439, (Ginsburg, J., dissenting),
quoting L. Henkin, Foreign Affairs and the United
States Constitution 164 (2d ed.1996) Otherwise, and
perhaps

despite

Justice

Ginsburg's

dissent,

it

remains inaudible.
Here, the Court has held that it lacks
jurisdiction over extraterritorial ATS claims due to
the absence of any explicit language in the ATS

31

providing for an extraterritorial effect. Kiobel, 133 S.


Ct. at 1665. The ATS cannot, therefore, be said to
"occupy the field" of this type of litigation in any
meaningful way. It is not logical to say that federal
law occupies the field after Kiobel.
It is conceivable that this case, whether heard
by a federal or state court, would involve "sitting in
judgment" of Colombia, as Justice Ginsburg has
warned.

However,

Colombian

prosecutors

have

requested the extradition of Chiquita's employees to


answer criminal charges for the relationship at issue
in this case, and the U.S. Department of Justice
prosecuted Chiquita for the exact same conduct.
There is no indication that either government has
any hostility towards this case. Both have policies
criminalizing the financial support of terrorist
organizations.
The diverse results produced by state courts
would run the risk of impeding the foreign relations
objectives

of

the

federal

government.

This

demonstrates the need for federal jurisdiction over


alien tort cases, and moreover, for the application of
federal common law by whatever court hears the
case.

32

C.

The Alienage Jurisdiction provisions of 28


USC 1332 were meant to keep "foreign" cases
in federal court.
Article III of the Constitution extends the

federal judicial power to "all Cases ... between a


State, or citizens thereof, and foreign States, Citizens
or Subjects."

U.S. Const. art. III, 2, cl. 1.

The

federal district courts have original jurisdiction over


suits between "citizens of a State and citizens or
subjects of a foreign state" by way of 28 U.S.C.
1332(a)(2). This has sometimes been referred to as
"alienage jurisdiction." See Matimak Trading Co. v.
Khalily, 118 F.3d 76, 82-85 (2nd Cir. 1997).
Alienage jurisdiction was intended "to provide
the federal courts

with a form of protective

jurisdiction over matters implicating international


relations

where

the

national

interest

was

paramount." Sadat v. Mertes, 615 F.2d 1176, 1182


(7th Cir. 1980)

The "paramount purpose" of the

alienage jurisdiction provision was to avoid offense to


foreign nations because of the possible appearance of
injustice to their citizens. Id. at 1186.19 Because of

See Moore's Federal Practice, 102.73 (2004); Kevin R.


Johnson, Why Alienage Jurisdiction? Historical Foundations
19

33

the clear language of 1332(a)(2), there is no doubt


that federal courts have diversity jurisdiction over
cases involving aliens.

And there is no doubt of the

injustice being done to the thousands of people


Chiquita paid to have killed.
There should also be no doubt that 28 U.S.C.
1332 itself applies extraterritorially, despite the lack
of any mention of territorial reach in the statute.
Applying the Kiobel rule to 1332 would lead us
down a steep slope, since the next question would be
whether 28 U.S.C. 1331, the federal question
jurisdiction statute, has extraterritorial application.
There is no mention of extraterritoriality in it. There
is also no indication in the text of 18 U.S.C. 3231,
which provides subject matter jurisdiction for federal
criminal offenses, of whether it applies outside of the
United States. Yet these three statutes are applied
to extraterritorial conduct on a regular basis.
Applying the Kiobel presumption to these purely
and Modern Justifications for Federal Jurisdiction over
Disputes Involving Noncitizens, 21 Yale J. Int'l L. 1, 10-16
(1996); Henry J. Friendly, The Historic Basis of Diversity
Jurisdiction, 41 Harv. L.Rev. 483, 484 n. 6 (1927-28) ("Several
states had failed to give foreigners proper protection under the
treaties concluded with England at the end of the Revolution."
... "Local animosity was so great that only national tribunals
could compel the enforcement of a national treaty.").

34

jurisdictional statutes would be contrary to the


common practices of the federal courts.
To some extent, the diversity jurisdiction
statute makes the Alien Tort Statute superfluous.
Section 1332 says nothing about which law should be
applied in diversity cases. There is no reason why a
cause of action arising under international law (war
crimes, genocide, crimes against humanity) couldn't
be brought under 1332. Or for that matter, a case
arising under the federal common law, which has
been developed in more than 100 ATS cases since
Filrtiga v. Pea-Irala, 630 F.2d 876 (2d Cir. 1980),
was decided.

After Kiobel, "foreign-cubed" cases

lacking diversity of citizenship can't be brought in


federal courts, so there is really no need for the ATS
if 1332 can incorporate claims brought under
international or federal common law.
D.

A State Court's Power to Hear "Foreign" Cases


is Limited Only by the Due Process Clause of
the US Constitution.
The result of limiting federal jurisdiction is

going to be that foreign plaintiffs will file their cases

35

in state courts.20 Justice Breyer predicted this when


he noted in Morrison that "state law ... may apply to
the fraudulent activity alleged here to have occurred
in the United States." Morrison, 130 S.Ct. at 2888
(Breyer, J., concurring)

The states' power to hear

these kinds of cases is limited only by the Due


Process Clause of the U.S. Constitution.21
The constitutional limits on a state court's
power to hear a case with foreign contacts is
For example,.in Norex Petroleum v. Access Indus. Inc., Case
No. 650591/2011 (N.Y. Sup. Ct.), plaintiffs had alleged
securities fraud in violation of Section 10(b) in federal court.
After the federal case was dismissed pursuant to Morrison, the
plaintiffs re-filed in state court, alleging common law fraud.
See Katherine Florey, State Law, U.S. Power, Foreign Disputes:
Understanding the Extraterritorial Effects of State Law in the
Wake of Morrison v. National Australia Bank, B.U. L. Rev. 535,
539 (2012) (noting that "Morrison has the perverse effect of
substituting state law for federal law in securities cases
involving substantial foreign contacts.") Cases involving the
actions of private military contractors in Iraq have been
brought in North Carolina State Court and the Superior Court
of the District of Columbia. See Brady v. Xe Services, Case No.
5:09-CV-449-BO (E.D.N.C.) (removed from N.C. State Court);
Askander v. Unity Resources Group, Case No. 5:10-CV-00073D. (E.D.N.C.) (refiled in D.C. Superior Court after ATS claims
dismissed, and no diversity of citizenship existed).
21 The application of one U.S. State's law by another State is
often justified by reference to the Full Faith and Credit Clause
of the Constitution. U.S. CONST. Art. IV, I ("Full Faith and
Credit shall be given in each State to the public Acts, Records,
and judicial Proceedings of every other State . . . "). The
Supreme Court has consistently held that the Full Faith and
Credit and Due Process Clauses play identical roles. See
Allstate Ins. Co. v. Hague, 449 U.S. 302, 308 n. 10 (1981).
20

36

normally met when the case has minimum contacts


with the forum state for purposes of personal
jurisdiction. This is because the tests for minimum
contacts and for constitutionally-sufficient choice of
laws are very similar. Personal jurisdiction requires
"certain minimum contacts" with the forum state
"such that the maintenance of the suit does not
offend

'traditional

notions

substantial justice.'"

of

fair

play

and

International Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945), quoting


Milliken v. Meyer, 311 U.S. 457, 463 (1940).

In

choice of laws, "a significant aggregation of contacts,


creating state interests, with the parties and the
occurrence or transaction" must exist in order to
apply a state's law. Allstate Ins. Co. v. Hague, 449
U.S. 302, 317 (1981); Phillips Petroleum Co. v.
Shutts, 472 U.S. 797, 818 (1985) (a state must have
enough contacts that choice of its law is neither
arbitrary nor fundamentally unfair.)
terms,

state

courts

may

hear

In practical

"foreign"

cases

whenever there is personal jurisdiction over the


defendant.
This

has

not

always

been

the

law.

Historically, a state could exercise jurisdiction only

37

within its territorial boundaries.

In Pennoyer v.

Neff, 95 U.S. 714 (1877), the Court upheld this


principle when it stated that judgments entered by a
court without territorial jurisdiction were violations
of the Due Process Clause of the U.S. Constitution.
The territoriality requirement was removed in
International Shoe, where the Court held that due
process only requires that the defendant have certain
"minimum contacts" with the forum in order for a
state to assert jurisdiction, and that such jurisdiction
may not offend "traditional notions of fair play and
substantial justice."

326 U.S. at 316. Following

International Shoe, states began enacting long-arm


statutes

to

assert

personal

jurisdiction

over

nonresidents, including aliens. If a state court has in


personum jurisdiction over a defendant, then it has
jurisdiction to hear the case.

The only remaining

issue is which laws should apply.


E.

Federal common law should apply to alien tort


cases, to ensure uniformity and federal control
over foreign relations.
A few years after Erie, in Swift v. Tyson, 41

U.S. 1 (1842), the Court held that in diversity cases

38

where the state's legislature had not spoken on an


issue, a federal court may create its own rules to fill
in the gaps.

This marked the beginning of the

development of the federal common law. To justify


the application of federal common law, a court must
find that federal interests may be compromised by
the application of state law.

Courts apply federal

common law when it is necessary to safeguard


"uniquely

federal

interests."

See,

eg.,

Banco

Nacional de Cuba v. Sabbatino, 376 U.S. 398, 426427 (1964) (since act of state doctrine implicates
foreign affairs of United States, doctrine must be
controlled by federal common law). Since the power
to conduct foreign affairs is an exclusively federal
interest, Zschernig v. Miller, 389 U.S. 429 (1968),
federal common law should be applied.

This is

precisely what the District Court did in the instant


case, when it relied on Halberstam v. Welch, 705
F.2d 472 (D.C.Cir.1983) for the federal common law
standard for aiding and abetting. Appx. at 99-100.
The federal common law provides a stable
background against which Congress can legislate
with predictable effects.

This is what the Court's

stated intentions were in Morrison v. National

39

Australia Bank, 130 S.Ct. 2869, 2886 (2010),


("Rather than guess anew in each case, we apply the
presumption in all cases, preserving a stable
background against which Congress can legislate
with predictable effects.") The Court's decisions in
Aramco and Morrison were not predicted, or what
Congress intended. Congress acted quickly to amend
Title VII to overrule EEOC v. Arabian American Oil
Co., 499 U.S. 244 (1991) to permit Title VII and the
Americans with Disabilities Act to apply to United
States citizens working abroad. In a provision in the
Dodd-Frank Act, Congress tried to reinstate preMorrison law with respect to actions in federal court
by the Department of Justice and the Securities and
Exchange Commission.22

Although Congress has

taken no action in response to the Kiobel decision,


neither did it act in response to the more than 100
Alien Tort Statute cases that have been brought in
the thirty years since Filartiga was decided. Rather
than providing a stable background, the Kiobel case

See Richard Painter, Douglas Dunham & Ellen Quackenbos,


When Courts and Congress Don't Say What They Mean: Initial
Reactions to Morrison v. Australia National Bank and to the
Extraterritorial Jurisdiction Provisions of the Dodd-Frank Act,
20 MINN. J. INTL L. 1, 2-5 (2011).
22

40

added confusion and controversy to an already


unsettled area of law.
CONCLUSION
Based

on

the

foregoing,

Petitioners

respectfully submit that this Petition for Writ of


Certiorari should be granted. The Court may wish to
consider summary reversal of the decision of the
Eleventh Circuit Court of Appeals, or in the
alterative, an order to remand the case to determine
whether it sufficiently "touches and concerns" the
territory of the United States.
Respectfully submitted,

_______________________________
Paul David Wolf, DC Bar#480285
Attorney for Does 1-144, 1-976,
1-677 and 1-254
PO Box 46213
Denver, CO 80201
(202) 431-6986

December ____, 2015

41