IN RE SOUTH AFRICAN APARTHEID LITIGATION
Docket Nos. 09-2778-cv(L), 09-2779-cv, 09-2780-cv, 09-2781-cv, 09-2783-cv, 09-2785-cv, 09-2787-cv, 09-2792-cv, 09-2801-cv, 09-3037-cv
United States Court of Appeals, Second Circuit
August 21, 2013
Argued: Jan. 11, 2010
727 F.3d 174
Before CABRANES, HALL, and LIVINGSTON, Circuit Judges.
That Simon might eventually have been called to testify in a judicial proceeding does not make her detention a prosecutorial function. See Buckley, 509 U.S. at 275-76, 113 S.Ct. 2606 (noting that a prosecutor cannot receive absolute immunity for investigative work merely because the work may later “be retrospectively described as ‘preparation’ for a judicial proceeding). As the Supreme Court has pointed out, “[a]lmost any action by a prosecutor, including his or her direct participation in purely investigative activity, could be said to be in some way related to the ultimate decision whether to prosecute,” but absolute immunity is not so expansive. Burns, 500 U.S. at 495, 111 S.Ct. 1934.
Therefore, the officers are not entitled to absolute immunity for their execution of the material witness warrant, even if they were following Longobardi‘s instructions. Police officers and a prosecutor who engage in extended detention and interrogation—including requiring attendance for a second full day—of a material witness whom the court has ordered to be brought before the court to determine whether she should be detained or bailed as a material witness are, as a matter of law, engaged in an investigative function that entitles them to, at most, qualified immunity.
We emphasize the limited nature of the question we address today. We do not decide, and express no view regarding, the legality of defendants’ actions under federal or New York law. Nor do we decide whether some or all of the defendants are entitled to qualified immunity.9 In the absence of any discovery by Simon, the record is insufficiently developed at this stage of the case to permit a ruling on that question. We hold only that defendants are not entitled to absolute prosecutorial immunity with respect to Simon‘s allegation that she was unlawfully detained for investigative interrogation.
CONCLUSION
Accordingly, the judgment is VACATED and REMANDED for further proceedings consistent with this opinion.
Sakwe BALINTULO, as personal representative of Saba Balintulo, Dennis Vincent Frederick Brutus, Mark Fransch, as personal representative of Anton Fransch, Elsie Gishi, Lesiba
v.
DAIMLER AG, Ford Motor Company, and International Business Machines Corporation, Defendants-Appellants.
Lisa S. Blatt (Peter L. Zimroth, Ramon P. Marks, Marcus A. Asner, on the brief), Arnold & Porter LLP, Washington, DC, and New York, NY; (Jerome S. Hirsch, Joseph N. Sacca, Gary J. Hacker, on the brief), Skadden, Arps, Slate, Meagher, & Flom LLP, New York, NY, for Defendant-Appellant Daimler AG.
Keith R. Hummel, Teena-Ann Sankoorikal, James E. Canning, John E. Lazar, Cravath, Swaine, & Moore, LLP, New York, NY, for Defendant-Appellant IBM Corporation.
Steig Olson (Michael D. Hausfeld, Ralph J. Bunche, on the brief), Hausfeld, LLP, New York, NY, and Washington, DC; (Robert G. Kerrigan, on the brief), Kerrigan, Estess, Rankin & McLeod, LLP, Pensacola, FL; (Matt Schultz, on the brief), Levin Papantonio Thomas Mitchell Echsner & Proctor, PA, Pensacola, FL; (Charles Peter Abrahams, on the brief), Abrahams Kiewitz, Cape Town, South Africa; for Plaintiffs-Appellees Sakwe Balintulo et al.
Paul L. Hoffman (Adrienne Quarry, on the brief), Schonbrun Desimone Seplow Harrison & Hoffman, Venice, CA; (Jay J. Rice, Diane E. Sammons, on the brief), Nagel Rice, LLP, Roseland, NJ; (Tyler R. Giannini, Susan Farbstein, on the brief), International Human Rights Clinic, Human Rights Program, Harvard Law School, Cambridge, MA; (Judith Brown Chomsky, on the brief), Law Offices of Judith Brown Chomsky, Elkins Park, PA; (Helen I. Zeldes, on the brief), Zeldes & Haeggquist, LLP, San Diego, CA; (Dumisa Buhle Ntsebeza, on the brief), Duma Nokwe Group of Advocates, Sandton, South Africa; (Michael Francis Osborne, on the brief), Cape Town, South Africa; (John Sindiso Ngcebetsha, Gugulethu Oscar Madlanga, on the brief), Ngcebetsha Madlanga Attorneys, Randburg, South Africa; (Medi Mokuena, on the brief), (Mokuena Attorneys, Johannesburg, South Africa); (Dan Stormer, Anne Richardson, on
Lewis S. Yelin (Ian Heath Gershengorn, Acting Assistant Attorney General, Douglass N. Letter, Robert M. Loeb, Appellate Staff, on the brief), Civil Division, U.S. Department of Justice, Washington, DC; (Preet Bharara, U.S. Attorney, and David S. Jones, Assistant U.S. Attorney, on the brief), Office of the U.S. Attorney for the Southern District of New York, NY; (Joan E. Donoghue, on the brief), U.S. Department of State, Washington, DC; for Amicus Curiae United States of America, in support of Plaintiffs-Appellees.
Peter R. Rutledge, Athens, GA; Robin S. Conrad, Amar D. Sarwal, National Chamber Litigation Center, Inc., Washington, DC; for Amicus Curiae Chamber of Commerce of the United States, in support of Defendants-Appellants.
Klaus Botzet, Embassy of the Federal Republic of Germany, Washington, DC, for Amicus Curiae Federal Republic of Germany, in support of Defendants-Appellants.
Alan E. Untereiner, Mark T. Stancil, Damon W. Taaffe, Eva A. Temkin, Ariel N. Lavinbuk, Robbins, Russel, Englert, Orseck, Untereiner & Sauber LLP, Washington, DC, for Amici Curiae Federation of German Industries, Association of German Chambers of Industry and Commerce, and German American Chambers of Commerce, in support of Defendants-Appellants.
Terry Myers, Jeffrey L. Nagel, Gibbons, P.C., New York, NY, for Amici Curiae German Law Professors, in support of Defendants-Appellants.
Anthony D. Boccanfuso, Arnold & Porter, LLP, New York, NY, for Amici Curiae International Chamber of Commerce, in support of Defendants-Appellants.
Terry Myers, Jeffrey L. Nagel, Gibbons, P.C., New York, NY, for Amici Curiae International Law Professors, in support of Defendants-Appellants.
Jeffrey A. Lamken, Evan A. Young, Baker Botts L.L.P., Washington, DC, and Austin, TX, for Amici Curiae National Foreign Trade Council, USA*Engage, U.S. Council for International Business, Organization for International Investment, and National Association of Manufacturers, in support of Defendants-Appellants.
Julian Ku, Hofstra University Law School, Hempstead, NY; Michael D. Ramsey, University of San Diego Law School, San Diego, CA; for Amici Curiae Law Professors of International Law and U.S. Foreign Relations Law, in support of Defendants-Appellants.
Marco B. Simons, Richard L. Herz, Jonathan G. Kaufman, EarthRights International, Washington, DC, for Amicus Curiae EarthRights International, in support of Plaintiffs-Appellees.
Steven A. Kanner, Freed Kanner London & Millen LLC, Bannockburn, IL, for Amici Curiae Former Commissioners and Committee Members of South Africa‘s Truth and Reconciliation Commission, in support of Plaintiffs-Appellees.
Piper Hendricks, World Organization for Human Rights USA, Washington, DC, for Amicus Curiae International Center for Transitional Justice, in support of Plaintiffs-Appellees.
William J. Aceves, California Western School of Law, San Diego, CA, for Amici Curiae International Law Scholars, in support of Plaintiffs-Appellees.
Robert N. Kaplan, Gregory K. Arenson, Kaplan Fox Kilsheimer LLP, New York,
Maria C. LaHood, Katherine Gallagher, Meena Jagannath, Blinne Ni Ghralaigh, Center for Constitutional Rights, New York, NY, for Amici Curiae Non-Governmental Organizations Committed to Human Rights, in support of Plaintiffs-Appellees.
Renae D. Steiner, Heins Mills & Olson, P.L.C., Minneapolis, MN, for Amici Curiae Professor John Dugard and Advocate Anton Katz, in support of Plaintiffs-Appellees.
Elizabeth J. Cabraser, Steve M. Swerdlow, Lieff Cabraser, Heimann & Bernstein LLP, San Francisco, CA; Agnieszka M. Fryszman, Maureen E. McOwen, Cohen Milstein Sellers & Toll PLLC, Washington, DC; and Jennifer M. Green, University of Minnesota School of Law, Minneapolis, MN; for Amici Curiae Professors of Civil Procedure, in support of Plaintiffs-Appellees.
Bernard Persky, Kellie Lerner, Labaton Sucharow LLP, New York, NY, for Amici Curiae Professors of Federal Jurisdiction and Legal History, in support of Plaintiffs-Appellees.
Eugene A. Spector, Spector Roseman Kodroff & Willis, P.C., Philadelphia, PA, for Amicus Curiae South African Council of Churches, in support of Plaintiffs-Appellees.
Terry Collingsworth, Conrad & Scherer, LLP, Washington, DC, for Amicus Curiae Congress of South African Trade Unions, in support of Plaintiffs-Appellees.
Richard L. Herz, Marco B. Simons, Jonathan G. Kaufman, EarthRights International, Washington, DC, for Amici Curiae U.S. Diplomats, in support of Plaintiffs-Appellees.
Luis Romero Requena, European Commission, Brussels, Belgium, for Amicus Curiae European Commission.
David B. Goldstein, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York, NY, for Amicus Curiae Republic of South Africa.
Nigel Sheinwald, British Embassy Washington, Washington, DC, for Amicus Curiae United Kingdom of Great Britain and Northern Ireland.
JOSÉ A. CABRANES, Circuit Judge:
The question presented is whether to issue a writ of mandamus to resolve in favor of the defendants this long-lived litigation under the Alien Tort Statute (“ATS“)—a statute, passed in 1789, that was rediscovered and revitalized by the courts in recent decades to permit aliens to sue for alleged serious violations of human rights occurring abroad. The statute was first deployed in 1980 against individual defendants alleged to have perpetrated crimes against humanity, and beginning in 1997, some courts have extended its reach to suits against corporate defendants as well. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 116 (2d Cir.2010), aff‘d on other grounds, --- U.S. ---, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013). We consider this question in light of the Supreme Court‘s recent decision that federal courts may not, under the ATS, recognize common-law causes of action for conduct occurring in another country.
In these putative class-action suits brought on behalf of those harmed by the decades-long South African legal regime known as “apartheid,” the plaintiffs assert that the South African subsidiary companies of the named corporate defendants—Daimler, Ford, and IBM (the “defen-
The plaintiffs brought these suits over ten years ago in federal court under the ATS, which confers federal jurisdiction over “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.”
at the time they filed their complaint they assumed (as did most American courts at that time3) that no such geographical connection was necessary. Based, in part, on that assumption, the United States District Court for the Southern District of New York (Shira A. Scheindlin, Judge) denied a motion to dismiss by the defendants, and allowed the suits to proceed. See In re South African Apartheid Litig., 617 F.Supp.2d 228, 246, 296 (S.D.N.Y.2009).
Although parties usually cannot appeal while district court proceedings are ongoing, the defendants sought immediate review of the District Court‘s denial of their motion to dismiss in this Court, first through a motion to certify an interlocutory appeal, which the District Court denied, and thereupon through either a writ of mandamus or under the “collateral order” doctrine5—both of which permit immediate appellate review of certain types of particularly important decisions by a district court. In pursuing appellate re-
view, the defendants claimed (1) that the case should be dismissed because it threatened significant United States foreign-policy interests, as explained in a statement of interest filed by the U.S. government; (2) that the jurisdiction conferred by the ATS does not permit suits against corporations or apply to acts committed outside of the United States; and (3) that the District Court erroneously imposed accessorial liability. We then granted the defendants’ motion for a stay of all proceedings, putting the District Court proceedings on pause while we considered this case.
Now on appeal for over four years, this case has been overtaken by recent events. Most significantly, the Supreme Court held, as a matter of United States law, that federal courts may not, under the ATS, recognize common-law causes of action for conduct occurring in the territory of another sovereign. Kiobel v. Royal Dutch Petroleum Co., --- U.S. ---, 133 S.Ct. 1659, 1668-69, 185 L.Ed.2d 671 (2013).6 Addi-
The opinion of the Supreme Court in Kiobel plainly bars common-law suits, like this one, alleging violations of customary international law based solely on conduct occurring abroad. Because of that unambiguous holding, the defendants will be able to obtain their desired relief (dismissal of all claims) in the District Court through a motion for judgment on the pleadings, without resort to a writ of mandamus. The defendants’ request for mandamus relief is therefore denied. For the same reason, we need not consider the defendants’ argument under the collateral order doctrine. Instead, we vacate our stay on the District Court proceedings so that the defendants may move for judgment on the pleadings. We reserve the question whether we have jurisdiction under the collateral order doctrine and hold the putative appeal under that doctrine in abeyance pending further notice from the parties.
I. Background
A. The Pleadings
These consolidated cases come to us as a continuation of litigation on which the District Court, this Court, and even the Supreme Court, have already spoken at length. See Part I.B., post. In the latest iteration of pleadings, which have been amended twice, the plaintiffs assert that the South African subsidiaries of the various corporate defendants aided and abetted in violations of customary international law during the repressive “apartheid” legal regime in South Africa. The District Court summarized these allegations as follows:
Plaintiffs in the first action, Ntsebeza v. Daimler A.G. (“Ntsebeza plaintiffs“), allege that they suffered discriminatory employment practices, employment retaliation for political beliefs, geographic segregation, arbitrary arrest and detention, torture, forced exile, arbitrary denationalization, and the extrajudicial killing of family members. The Ntsebeza plaintiffs bring a class action on behalf of “themselves and all black South African citizens (and their heirs and beneficiaries) who during the period from 1973 to 1994 suffered injuries” as a result of defendants’ direct and secondary violations of the law of nations.
Plaintiffs in the second action, Khulumani v. Barclay National Bank Ltd. (“Khulumani plaintiffs“), include both Khulumani—a South African organization that “works to assist victims of apartheid-era violence“—and individuals who suffered geographic segregation, arbitrary arrest and detention, rape, torture, and the extrajudicial killing of family members....
The Ntsebeza plaintiffs allege that the automotive defendants—or their agents or alter egos—committed both direct and secondary violations of the law of nations by engaging in workplace discrimination that mimicked and enhanced apartheid, suppressing union activities, manufacturing military vehicles for the South African security forces in the face
of worker protests, and assisting security forces in identifying and torturing anti-apartheid leaders. The Ntsebeza plaintiffs additionally allege that defendant IBM—or its agents or alter egos—committed secondary violations of the law of nations by providing the computer hardware, software, maintenance, and support necessary for the South African Government to carry out geographic segregation and denationalization.... The Khulumani plaintiffs allege that the automotive defendants aided and abetted violations of the law of nations by supplying vehicles, parts, and other equipment to the apartheid security forces. The Khulumani plaintiffs additionally allege that the technology defendants aided and abetted violations of the law of nations by providing the computer systems necessary to restrict black South Africans’ movements, track dissidents, and target particular individuals for repressive acts.
In re South African Apartheid Litig., 617 F.Supp.2d at 241-43.
B. Procedural History
“The tortuous procedural history of these cases dates back to the filing of complaints in 2002.” In re South African Apartheid Litig., 624 F.Supp.2d 336, 338 (S.D.N.Y.2009).7 As relevant here, Judge Sprizzo, then presiding, dismissed the plaintiffs’ claims under the ATS for lack of subject-matter jurisdiction, holding that the plaintiffs had not alleged a violation of “well-accepted and clearly-defined” norms of customary international law. In re South African Apartheid Litig., 346 F.Supp.2d 538, 546, 548 (S.D.N.Y.2004). We reversed that judgment in part, explaining in a per curiam opinion that “a plaintiff may plead a theory of aiding and abetting liability” under the ATS, Khulumani v. Barclay Nat‘l Bank Ltd., 504 F.3d 254, 260 (2d Cir.2007) (per curiam), but we declined to reach other arguments, and instead permitted the plaintiffs to replead, id. at 260-61.8 After the defendants sought a writ of certiorari, the Supreme Court affirmed our decision for want of a quorum. See Am. Isuzu Motors, Inc. v. Ntsebeza, 553 U.S. 1028, 128 S.Ct. 2424, 171 L.Ed.2d 225 (2008) (Mem.).
On remand, the plaintiffs filed an amended complaint, this time naming only eight defendants.9 With the exception of one defendant that contested personal jurisdiction, the defendants then filed a joint motion to dismiss on various grounds, including doctrines of case-specific deference and international comity, lack of jurisdiction over corporations under the ATS, lack of extraterritorial reach for causes of action under the ATS, and the absence of aiding-and-abetting liability under the federal common law, as developed pursuant to
We initially heard argument on a variety of preliminary motions on September 1, 2009. Only a day after argument, we received a letter from the South African government reversing its earlier position and declaring that it was “now of the view that [the United States District Court for the Southern District of New York] is an appropriate forum to hear the remaining claims of aiding and abetting in violation of international law.” See Letter of Jeffrey Thamsanqa Radebe, Minister of Justice and Constitutional Development, Sept. 2, 2009; see also Sosa, 542 U.S. at 733 n. 21,
Less than a year later, this Court (in a separate case) held that “the Alien Tort Statute does not provide subject matter jurisdiction over claims against corporations” based on asserted violations of cus-
tomary international law. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 149 (2d Cir.2010), reh‘g en banc denied, 642 F.3d 379 (2d Cir.2011). The Supreme Court granted certiorari and, after reargument,14 affirmed our judgment on different grounds, holding that federal courts may not, under the ATS, recognize common-law causes of action for conduct occurring in the territory of another sovereign. Kiobel v. Royal Dutch Petroleum Co., --- U.S. ---, 133 S.Ct. 1659, 1668-69, 185 L.Ed.2d 671 (2013). With respect to the present suit, we then requested, and have now received, supplemental briefing from the parties.
II. Discussion
The defendants seek a writ of mandamus under the All Writs Act,
A. Writ of Mandamus
i.
As a general matter, denials of a motion to dismiss are not appealable as “final decisions” of the district courts under
litigation.”
If a district court refuses certification, or certification is not otherwise available, however, then a party may petition for a writ of mandamus—“a drastic and extraordinary remedy reserved for really extraordinary causes.” Cheney, 542 U.S. at 380 (internal quotation marks omitted); see also Will v. United States, 389 U.S. 90, 107, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967) (noting that the writ of mandamus is one of “the most potent weapons in the judicial arsenal“); note 15, ante (common-law remedy codified in the All Writs Act). Three conditions circumscribe use of the writ:
First, the party seeking issuance of the writ must have no other adequate means to attain the relief he desires—a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process. Second, the petitioner must satisfy the burden of showing that his right to issuance of the writ is clear and indisputable. Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the
Cheney, 542 U.S. at 380-81 (alternations, internal quotation marks, and citations omitted). Mandamus relief is appropriate “in extraordinary circumstances,” when, for example, a district court‘s order “amounts to a judicial usurpation of power or a clear abuse of discretion, or otherwise works a manifest injustice.” Mohawk Indus., 558 U.S. at 111 (alteration and internal quotation marks omitted).18
Two aspects of ATS jurisprudence, however, urge greater appellate oversight through use of mandamus in appropriate cases. First, ATS suits often create particular “risks of adverse foreign policy consequences,” Sosa, 542 U.S. at 728, obliging courts to be “particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs,” id. at 727. This risk of tread-
ing into matters within the province of other branches of government, and intruding into delicate areas of intergovernmental relations, warrants closer appellate scrutiny through supervisory mandamus review. See Cheney, 542 U.S. at 380-82. Appellate courts have therefore been less hesitant to issue the writ when a lower-court decision threatens to affect the foreign policy of the United States. See, e.g., Ex parte Republic of Peru, 318 U.S. 578, 586, 63 S.Ct. 793, 87 L.Ed. 1014 (1943); In re Austrian, German Holocaust Litig., 250 F.3d 156, 163-65 (2d Cir.2001); Abelesz v. OTP Bank, 692 F.3d 638, 651 (7th Cir.2012). Second, and relatedly, the ATS places federal judges in an unusual lawmaking role as creators of federal common law. See Sosa, 542 U.S. at 724-25. This exercise of authority by federal courts elevates “the danger of unwarranted judicial interference in the conduct of foreign policy,” Kiobel, 133 S.Ct. at 1664, again warranting greater appellate oversight, see Cheney, 542 U.S. at 380-82. In sum, a ruling that raises substantial questions of judicial power under the ATS and threatens to affect significant American foreign policy objectives cannot be insulated from immediate review simply because a lower court refuses to certify the order for appeal.
Such concerns are present here. In addition to the federal common-law aspect of these ATS suits, the United States government filed a statement of interest on October 30, 2003, articulating its position that “continued adjudication of [these] matters risks potentially serious adverse consequences for significant interests of the United States.”19 Def. App‘x 254. The statement of interest further explains:
We are also concerned that adjudication of the apartheid cases may deter foreign investment where it is most needed. The United States relies, in significant part, on economic ties and investment to encourage and promote change in the domestic policies of developing countries on issues relevant to U.S. interests, such as respect for human rights and reduction of poverty. However, the prospect of costly litigation and potential liability in U.S. courts for operating in a country whose government implements oppres-
sive policies will discourage U.S. (and other foreign) corporations from investment in many areas of the developing world.
Id. at 255-56. Such important foreign policy interests as those raised here cannot be vindicated by waiting until final judgment.
Nonetheless, we need not wade into the merits of the defendants’ various arguments, because we are not persuaded that mandamus is the only “adequate means to attain the relief” that they desire. For the reasons explained in the following section, see Part II.A.ii., and in light of the Supreme Court‘s holding in Kiobel that federal courts may not, under the ATS, recognize common-law causes of action for conduct occurring in the territory of another sovereign, Kiobel, 133 S.Ct. at 1668-69, defendants can seek the dismissal of all of the plaintiffs’ claims, and prevail, prior to discovery, through a motion for judgment on the pleadings under
ii.
As we have now made clear, Kiobel forecloses the plaintiffs’ claims because the plaintiffs have failed to allege that any relevant conduct occurred in the United States. The plaintiffs resist this obvious impact of the Kiobel holding on their claims. The Supreme Court‘s decision, they argue, does not preclude suits under the ATS based on foreign conduct when the defendants are American nationals, or where the defendants’ conduct affronts significant American interests identified by the plaintiffs. See Plaintiffs’ Letter Br. at 6-13. Curiously, this interpretation of Kiobel arrives at precisely the conclusion reached by Justice Breyer, who, writing for himself and three colleagues, only concurred in the judgment of the Court affirming our decision to dismiss all remaining claims brought under the ATS. See Kiobel, 133 S.Ct. at 1671 (Breyer, J., concurring). The plaintiffs’ argument, however, seeks to evade the bright-line clarity of the Court‘s actual holding—clarity that ensures that the defendants can obtain their desired relief without resort to mandamus. We briefly highlight why the plaintiffs’ arguments lack merit.
a.
The Supreme Court‘s Kiobel decision, the plaintiffs assert, “adopted a new presumption that ATS claims must ‘touch and concern’ the United States with ‘sufficient force’ to state a cause of action.” Plaintiffs’ Letter Br. 6 (quoting Kiobel, 133 S.Ct. at 1669). The plaintiffs read the opinion of the Court as holding only that “mere corporate presence” in the United States is insufficient for a claim to “touch and concern” the United States, but that corporate citizenship in the United States is enough. Id. at 11 (“[I]nternational law violations committed by U.S. citizens on foreign soil ‘touch and concern’ U.S. territory with ‘sufficient force’ to displace the Kiobel presumption.“). Reaching a conclusion similar to that of Justice Breyer and the minority of the Supreme Court in Kiobel, the plaintiffs argue that whether the relevant conduct occurred abroad is simply one prong of a multi-factor test, and the ATS still reaches extraterritorial conduct when the defendant is an American national. Id. at 8-11.
We disagree. The Supreme Court expressly held that claims under the ATS cannot be brought for violations of the law of nations occurring within the territory of a sovereign other than the United States. Kiobel, 133 S.Ct. at 1662, 1668-69. The majority framed the question presented in these terms no fewer than three times22; it repeated the same language, focusing solely on the location of the relevant “conduct” or “violation,” at least eight more times in other parts of its eight-page opinion23; and it affirmed our
ly, if all the relevant conduct occurred abroad, that is simply the end of the matter under Kiobel.
In the conclusion of its opinion, the Supreme Court stated in dicta that, even when claims brought under the ATS “touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.”25 Part IV, which followed the Supreme Court‘s conclusion in Part III that “petitioners’ case seeking relief for violations of the law of nations occurring outside the United States is barred,” Kiobel, 133 S.Ct. at 1669, reads as follows:
On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. See Morrison, 130 S.Ct. at 2883-88. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.
Id. Viewing this paragraph in context, the first sentence relates to this case, and the second sentence relates to ATS cases not already “barred” because all of the relevant conduct occurred abroad. This dichotomy is evident from (1) the contrast between the opening clauses in these two sentences; (2) the Court‘s earlier conclusion that “petitioners’ case ... is barred” based solely on the extraterritoriality of the relevant conduct,
b.
The plaintiffs also assert that “the Kiobel presumption is displaced here” because of the compelling American interests in supporting the struggle against apartheid in South Africa. Plaintiffs’ Letter Br. 11. These case-specific policy arguments miss the mark. The canon against extraterritorial application is “a presumption about a statute‘s meaning.” Morrison, 130 S.Ct. at 2877 (emphasis supplied). Its “wisdom,” the Supreme Court has explained, is that, “[r]ather 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.” id. at 2881 (emphasis supplied). For that reason, the presumption against extraterritoriality applies to the statute, or at least the part of the ATS that “carries with it an opportunity to develop common law,” Sosa, 542 U.S. at 731 n. 19, and “allows federal courts to recognize certain causes of action,” Kiobel, 133 S.Ct. at 1664. In order “to rebut the presumption, the ATS [i.e., the statute] would need to evince a clear indication of extraterritoriality.” Id. at 1665 (quotation marks omitted). Applying this approach in Kiobel, the Supreme Court held as a matter of statutory interpretation that the implicit authority to engage in common-law development under the ATS does not include the power to
c.
Finally, the plaintiffs argue that the defendants “took affirmative steps in this country to circumvent the sanctions regime, though discovery would be necessary to determine the full scope of such U.S.-based conduct.” Plaintiffs’ Letter Br. 13. Without additional explanation, the plaintiffs refer to various paragraphs in the complaints asserting that the American defendants continued to supply the South African government with their products, notwithstanding various legal restrictions against trade with South Africa. See Balintulo Compl. ¶¶ 246-50 (Ford), App‘x 494-95; id. ¶¶ 196, 198, 212(IBM), App‘x 483, 486; Ntsebeza Compl. ¶ 128 (Ford), App‘x 199; id. ¶¶ 139-41(IBM), App‘x 202-03.
None of these paragraphs, however, ties the relevant human rights violations to actions taken within the United States. The complaint alleges only vicarious liability of the defendant corporations based on the actions taken within South Africa by their South African subsidiaries. See In re South African Apartheid Litig., 617 F.Supp.2d at 275 (“[A]llegations [of an agency relationship] are sufficiently plausible to allow this claim to proceed on a theory of vicarious liability.“). Because the defendants’ putative agents did not commit any relevant conduct within the United States giving rise to a violation of customary international law—that is, because the asserted “violation[s] of the law of nations occurr[ed] outside the United States,” Kiobel, 133 S.Ct. at 1669—the defendants cannot be vicariously liable for that conduct under the ATS.28
B. Collateral Order Doctrine
The defendants also assert that the district court‘s order denying their motion to dismiss is a “collateral order,” subject to immediate appellate review. In contrast to the “discretionary review mechanisms” of certification and mandamus, Mohawk Indus., 558 U.S. at 111, collateral order appeals are taken “as of right,” id. at 112, and do not depend on an “‘individualized jurisdictional inquiry,‘” id. at 107 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 473, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). The parties have presented strong arguments on each side regarding the immediate appealability of the District Court‘s order under the collateral order doctrine,29 but we need not confront that question now. The Supreme Court‘s decision in Kiobel, among other developments in ATS jurisprudence during the past four years, plainly forecloses the plaintiffs’ claims as a matter of law. See Part II.A.ii., ante.
In these circumstances, the interests of judicial economy, and of the parties, are best served by holding this putative appeal under the collateral order doctrine in abeyance and enabling the District Court to consider a motion for judgment on the pleadings to dismiss the plaintiffs’ remaining claims.30 See, e.g., Authors Guild, Inc. v. Google Inc., 721 F.3d 132 (2d Cir.2013); In re Sims, 534 F.3d at 127. The parties can then inform this Court, when appropriate, that this matter has been rendered moot.
CONCLUSION
To summarize:
- Before issuing a writ of mandamus, a court must ensure that (1) the party seeking relief has no other adequate means of relief; (2) his right to issuance of the writ is clear; and (3) circumstances justify use of the writ.
- In light of the Supreme Court‘s decision in Kiobel v. Royal Dutch Petroleum Co., --- U.S. ---, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013), issuance of the writ is unnecessary in
this case because the defendants have an adequate means of relief through a motion for judgment on the pleadings. That is, regardless of the merits of their various arguments in favor of case-specific deference and international comity, the defendants can obtain the dismissal of all claims now that the Supreme Court in Kiobel has made clear that federal courts may not, under the ATS, recognize common-law causes of action for conduct occurring in another country. - The plaintiffs’ arguments that the Supreme Court‘s decision in Kiobel does not apply where the defendants are American citizens, or where the case involves American interests, are without merit.
- Because the Supreme Court‘s Kiobel decision plainly forecloses the plaintiffs’ claims as a matter of law, we do not consider whether the defendants have asserted a valid basis for “collateral order” jurisdiction under
28 U.S.C. § 1291 .
Because the Kiobel decision, combined with the opportunity to move for dismissal in the District Court, provides an adequate ground for dismissing all remaining claims, the defendants’ petition for a writ of mandamus is DENIED. The stay placed by this Court on proceedings in the District Court is hereby VACATED. Proceedings in the District Court may resume forthwith. See note 30, ante. We reserve the question whether we have jurisdiction under the collateral order doctrine and hold this putative appeal in abeyance pending further notice from the parties, provided in writing to the Clerk of this Court.
JOSÉ A. CABRANES
CIRCUIT JUDGE
Notes
The Balintulo plaintiffs sued twenty-three named foreign and domestic corporations: AEG Daimler-Benz Industrie, Barclays National Bank Ltd., British Petroleum, PLC, ChevronTexaco Corp., ChevronTexaco Global Energy, Inc., Citigroup, Inc., Commerzbank, Credit Suisse Group, DaimlerChrysler AG, Deutsche Bank AG, Dresdner Bank AG, Exxon Mobil Corp., Fluor Corp., Ford Motor Co., Fujitsu, Ltd., General Motors Corp., IBM Corp., J.P. Morgan Chase, Rheinmetall Group AG, Rio Tinto Group, Shell Oil Co., Total-Fina-Elf, and UBS AG.
The Ntsebeza plaintiffs sued fifty-five defendants, including Amdahl Corp., American Isuzu Motors, Inc., Anglo-American Corp., Banque Indo Suez, Bank of America, N.A., Barclays Bank PLC, Citigroup Inc., Bristol-Meyers Squibb Co., Burroughs Corp., Chemical Bank & Chase Manhattan Bank, Chevron Texaco Corp., Citigroup AG, Coca-Cola Co., Colgate Palmolive, Commerzbank AG, Crédit Agricole S.A., Crédit Lyonnais, Credit Suisse Group, Daimler Chrysler Corp., De Beers Corp., Deutsche Bank AG, The Dow Chemical Co., Dresdner Bank AG, E.I. Dupont de Nemours and Co., EMS-Chemie (North America) Inc., Exxon Mobil Corp., Ford Motor Co., General Electric Co., General Motors Corp., Hewlett-Packard Co., Holcim, Inc., Holcim, Ltd., Honeywell International, Inc., ICL, Ltd., J.P. Morgan, IBM Corp., Manufacturers Hanover Corp., Merrill Lynch & Co. Inc., Minnesota Mining and Manufacturing Co. (3M Co.), National Westminster Bank PLC, Nestle USA, Inc., Novartis AG, Oerlikon Bührle AG, Oerlikon Contraves AG, Royal Dutch Petroleum Co., Schindler Holding AG, Securities Inc., Shell Oil Co., Shell Petroleum, Inc., Shell Transport & Trading Co. PLC, Sperry Corp., Standard Chartered, P.L.C., Sulzer AG, UBS AG, Unisys Corp., Xerox Corp., along with unnamed corporations and various named and unnamed corporate officers.
The three defendants in the instant appeal—Daimler, Ford, and IBM—are all that remain.
- Whether the issue of corporate civil tort liability under the Alien Tort Statute (“ATS“),
28 U.S.C. § 1350 , is a merits question, as it has been treated by all courts prior to the decision below, or an issue of subject matter jurisdiction, as the court of appeals held for the first time. - Whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide, as the court of appeals decisions provides, or if corporations may be sued in the same manner as any other private party defendant under the ATS for such egregious violations, as the Eleventh Circuit has explicitly held.
The Court heard argument on February 28, 2012, and then on March 5, 2012, ordered supplemental briefing and reargument to consider the following question:
Whether and under what circumstances the Alien Tort Statute,
Kiobel v. Royal Dutch Petroleum Co., --- U.S. ---, 132 S.Ct. 1738, 182 L.Ed.2d 270 (2012) (Mem.). The Court heard reargument on October 1, 2012, and issued its decision on April 17, 2013. See Kiobel v. Royal Dutch Petroleum Co., --- U.S. ---, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013).