254 F. Supp. 3d 262
D. Mass.2017Background
- SMUG (Sexual Minorities Uganda) sued U.S. citizen Scott Lively under the Alien Tort Statute (ATS), alleging he aided and abetted crimes against humanity by assisting Ugandan officials and activists in persecuting LGBTI persons.
- Lively authored anti-LGBTI books, traveled to Uganda (2002, 2009), spoke at conferences, and exchanged emails and materials with Ugandan actors involved in the Anti-Homosexuality Bill and related campaigns.
- Discovery showed a limited volume of substantive emails (roughly a dozen over 2009–2014) likely sent from the U.S., copies of writings sent abroad, and in-country appearances and activity in Uganda.
- Lively did not provide funding, hire agents, supply material support, or directly commit physical violence; most significant operational activity occurred in Uganda.
- The court previously held aiding-and-abetting persecution can state an ATS claim, but after discovery revisited whether the U.S. court has extraterritorial jurisdiction under Kiobel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ATS permits jurisdiction for alleged aiding-and-abetting of crimes against humanity when injuries occurred abroad | Lively’s U.S.-based citizenship, travel, writings, and emails sufficiently "touch and concern" the U.S. to overcome Kiobel presumption | ATS has no extraterritorial reach here; contacts with U.S. (citizenship, sporadic emails, past travel) are insufficient under Kiobel and Morrison | Court held no ATS jurisdiction — plaintiff’s contacts with the U.S. lack sufficient force to displace presumption against extraterritoriality |
| Whether aiding-and-abetting persecution of LGBTI persons is a cognizable ATS claim | Aiding and abetting persecution of LGBTI persons constitutes a crime against humanity actionable under ATS | Agreed the substantive claim could be cognizable but challenged jurisdiction | Court previously held such conduct is a crime against humanity cognizable under ATS (but dismissed for lack of jurisdiction after discovery) |
| Whether emails and nonmaterial assistance from the U.S. suffice to justify ATS jurisdiction | Emails, books, advice, and communications from the U.S. are sufficient contacts | Sporadic emails and sending writings do not create sufficient U.S. nexus; allowing jurisdiction would eviscerate Kiobel | Court held emails/writings here are insufficient to overcome Kiobel; exercise of jurisdiction would raise foreign-policy and sovereignty concerns |
| Whether to retain supplemental jurisdiction over state-law claims after dismissal of federal claims | SMUG urged adjudication in federal court | Lively sought dismissal for lack of federal jurisdiction | Court declined supplemental jurisdiction and dismissed state-law claims without prejudice to refiling in state court |
Key Cases Cited
- Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (establishes presumption against extraterritorial application of ATS)
- Sosa v. Alvarez-Machain, 542 U.S. 692 (ATS recognized limited causes of action under international law)
- Morrison v. National Australia Bank Ltd., 561 U.S. 247 (framework for presumption against extraterritoriality and touch-and-concern analysis)
- Al Shimari v. CACI Premier Technology, Inc., 758 F.3d 516 (Fourth Circuit: substantial domestic conduct can displace presumption)
- Mastafa v. Chevron Corp., 770 F.3d 170 (Second Circuit: domestic transactions may supply sufficient force for ATS jurisdiction)
- Adhikari v. Kellogg Brown & Root, Inc., 845 F.3d 184 (Fifth Circuit: foreign-occurring conduct may remain insufficient despite some U.S. contacts)
- United Mine Workers of Am. v. Gibbs, 383 U.S. 715 (doctrine governing supplemental jurisdiction)
- United States v. Windsor, 570 U.S. 744 (recognition of dignity and status of same-sex families referenced in opinion)