Ramchandra Adhikari v. Daoud & Partners, et
2017 U.S. App. LEXIS 57
5th Cir.2017Background
- In 2004 twelve Nepali men were recruited in Nepal and Jordan to work for Daoud, a Jordanian subcontractor to KBR, and were captured and executed by Iraqi insurgents while being transported to Al Asad Air Base; one Nepalese worker (Gurung) survived and worked at Al Asad for ~15 months.
- Plaintiffs (Nepalese victims’ families and Gurung) sued KBR and Daoud in 2008 under the Alien Tort Statute (ATS), the TVPRA (18 U.S.C. §§ 1589, 1590, 1595), and state common law tort claims; Plaintiffs settled with Daoud and proceeded against KBR.
- District court dismissed ATS claims after Kiobel; initially denied summary judgment on TVPRA but later held §1596 (2008 amendment granting extraterritorial TVPRA jurisdiction) could not be applied retroactively to 2004 conduct and dismissed TVPRA claims; state-law torts were time-barred and tolling denied.
- Fifth Circuit applied the two-step extraterritoriality framework (RJR Nabisco/Morrison): (1) whether statute rebuts presumption against extraterritoriality; (2) if not, whether the case involves a permissible domestic application by reference to the statute’s focus.
- Court held ATS claims barred because all conduct relevant to ATS’s focus (violations of the law of nations) occurred abroad and neither control of Al Asad nor U.S.-based payments/knowledge displaced the presumption; §1596 cannot be applied to pre-2008 conduct because it would have impermissible retroactive effect.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ATS provides jurisdiction for Plaintiffs’ claims (extraterritoriality) | ATS can reach KBR because claims “touch and concern” U.S. (U.S. corporate defendant, operations on Al Asad, U.S.-based decisionmaking/payments) | ATS is subject to presumption against extraterritoriality (Kiobel); relevant conduct occurred abroad so no ATS jurisdiction | ATS claims dismissed: presumption applies and Plaintiffs did not show conduct relevant to ATS focus occurred in U.S. |
| Whether Al Asad or U.S. control of base makes conduct domestic for ATS | Al Asad was under U.S. control; KBR conduct there is domestic and displaces presumption | Al Asad remained Iraqi territory; U.S. control was not de facto sovereignty in 2004 | Al Asad not U.S. territory in 2004; conduct there is extraterritorial for ATS purposes |
| Whether §1596 (2008) permits TVPRA suits for 2004 conduct (retroactivity) | §1596 clarifies preexisting extraterritorial reach or is purely jurisdictional so applies to pre-2008 conduct | §1596 changed substantive rights by creating civil jurisdiction for extraterritorial claims; applying it retroactively would impose new liability | TVPRA claims dismissed: §1596 cannot be applied retroactively to KBR’s 2004 conduct because it changes substantive rights |
| Whether state-law tort claims were properly dismissed/tolled | Plaintiffs request equitable tolling or that Iraqi law applies (changing choice-of-law) | Statutes of limitation under California/Texas bar claims; Plaintiffs waived belated choice-of-law; no extraordinary basis for tolling | District court did not abuse discretion: state tort claims time-barred and equitable tolling denied |
Key Cases Cited
- Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (U.S. 2013) (ATS subject to presumption against extraterritoriality; claims must "touch and concern" U.S. territory to overcome it)
- RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090 (U.S. 2016) (two-step extraterritoriality inquiry: clear congressional intent, then statute’s "focus" for domestic application)
- Morrison v. National Australia Bank Ltd., 561 U.S. 247 (U.S. 2010) (presumption against extraterritoriality; focus inquiry to identify domestic applications)
- Sosa v. Alvarez-Machain, 542 U.S. 692 (U.S. 2004) (ATS provides jurisdiction for narrow, definite international-law norms as federal common law)
- Landgraf v. USI Film Prods., 511 U.S. 244 (U.S. 1994) (framework for presumption against retroactivity)
- Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939 (U.S. 1997) (jurisdictional amendments may have retroactive substantive effect; Landgraf governs)
- Mastafa v. Chevron Corp., 770 F.3d 170 (2d Cir. 2014) (ATS "focus" analysis examines location of conduct alleged to violate law of nations)