Concurrence Opinion
concurring in the denial of rehearing in banc.
I concur in the denial of in banc review of this case; rehearing would serve no purpose remotely commensurate with the effort it would entail.
The panel opinion grudgingly rejects plaintiffs’ claim as barred by our decision in Kiobel v. Royal Dutch Petroleum Co.,
Although the seven other judges who voted against in banc review do not necessarily endorse Kiobel I (or reach the merits of it), there is consensus that intervening developments obviate any need to go in banc.
* * *
Back in 2011, this Court rejected in banc review of this issue. See Kiobel v. Royal Dutch Petroleum Co.,
Since the population of cases dismissible under Kiobel I is largely coextensive with those dismissible under Kiobel II, several conclusions follow:
• The principle of Kiobel I has been largely overtaken, and its importance for outcomes has been sharply eroded. SeeFlomo v. Firestone Nat’l Rubber Co., LLC, 643 F.3d 1013 , 1025 (7th Cir.2011) (Posner, J.) (“Deny extraterritorial application, and the statute would be superfluous _”).
• This present appeal was subject to two easy (alternative) dispositions: affirm on the basis of Kiobel I (without lamentation) or remand for the district court to consider the case under Kiobel II. See Kiobel II,133 S.Ct. at 1669 .
• There is no reason to consider or reconsider Kiobel I in banc in this appeal.
This appeal could have been straightforwardly decided under Kiobel II, which held that the presumption against extraterritoriality can be displaced only if the “claims toueh[ed] and concern[ed] the territory of the United States”; that they must do so with “sufficient force”; and that “mere corporate presence” (for example) is not enough. Id. Kiobel II emphasizes that this must be a high hurdle, given the danger of judicial meddling in the affairs of foreign countries:
[T]he danger of unwarranted judicial interference in the conduct of foreign policy is magnified in the context of the ATS, because the question is not what Congress has done but instead what courts may do ... These concerns, which are implicated in any case arising under the ATS, are all the more pressing when the question is whether a cause of action under the ATS reaches conduct within the territory of another sovereign ... The principles underlying the presumption against extraterritoriаlity thus constrain courts exercising their power under the ATS.
Id. at 1664-65.
In this case, the underlying offense against the law of nations is terrorism against citizens of Israel by four Palestinian terrorist groups. Arab Bank, PLC, which is headquartered in Jordan, is named as defendant because funds allegedly passed through its branches to other countries for distribution to terrorists.
The only contact with the United States mentioned in the Arab Bank opinion is that terrorist groups used branches of Arab Bank in a score of countries (including a single U.S. branch, in Manhattan) for, among other ordinary transactions, the conversion of funds from one currency to another. See In re Arab Bank, PLC Alien Tort Statute Litig.,
In the (unlikely) event that plaintiffs could somehow plead around Kiobel II, they would face a separate formidable barrier: the mens rea requirement. See Presbyterian Church of Sudan v. Talisman Energy, Inc.,
It is thus evident that the Arab Bank panel opinion steered deliberately into controversy. That impression is confirmed by the slender pretexts advanced by the panel for refusing to consider extraterritoriality.
The panel considers it “unwise to decide the difficult and sensitive issue of whether the clearing of foreign dollar-denominated payments [in simpler terms, money] through a branch in New York could, under these circumstances, displace the presumption against the extraterritorial application of the ATS.... ” Arab Bank,
The panel decision notes that Kiobel II was “not the focus of either the district court’s decision or the briefing on appeal.” Id. But this need not boggle judicial ingenuity: the panel could have remanded in light of Kiobel II, or it could have asked for supplemental briefing. It is not recommended appellate craft to avoid so easy a disposition and instead strain to revisit Circuit precedent in banc.
The circuit split that so worries the Arab Bank panel is illusory. The panel opinion сonjures up a circuit split from these cases:
• Two of the decisions pre-date Kiobel II; so those panels did not have the option of dismissal or remand on the ground of extraterritoriality. See Flomo,643 F.3d at 1021 (issued almost two years before Kiobel II); Romero v. Drummond Co., Inc.,552 F.3d 1303 , 1315 (11th Cir.2008) (issued more than four years before Kiobel II).
• The rest were decided on the basis of Kiobel II. See Doe I v. Nestle USA, Inc.,766 F.3d 1013 , 1027-28 (9th Cir.2014) (“We decline to resolve the extraterritoriality issue, and instead remand to allow the plaintiffs to amend their complaint in light of Kiobel II ... It is common practice to allow plaintiffs to amend their pleadings to accommodate changes in the law....”); Doe VIII v. Exxon Mobil Corp., 527 F. App’x [Fed. Appx.] 7 (D.C.Cir.2013) (“[I]n light of intervening changes in governing law regarding the extraterritorial reach of the Alien Tort Statute, see [.Kiobel II], ... the Alien Tort Statute claims [are] remanded to the District Court for further consideration.”).
• As to Al Shimari v. CACI Premier Tech., Inc.,758 F.3d 516 , 530 (4th Cir.2014), cited by the Arab Bank panel as “see also”: the case was decided solely on the basis of Kiobel II: “[Plaintiffs’ ATS claims ‘touch and concern’ the territory of the United States with sufficient force to displace the presumption against extraterritorial application....”.
All this is by way of saying that this appeal is insufficiently important or consequential to warrant review in banc.
jn sum, the panel’s angst in having to follow Kiobel I was self-inflicted. The appeal could have been resolved under Kio-6e( II; if the problem was lack of briefing, briefing could have been ordered; if finding the right answer under Kiobel II was a strain on the panel, it could have remanded; if the easiest course was to follow a
A further consideration: Kiobel I was sharply contested within the panel; there was friction, heat and light in the Kiobel I panel opinions, and over panel rehearing and the (defeated) 2011 in banc initiative. There is even less reason now than then to reconsider in banc an issue so highly charged. More to the point, the Supreme Court will have two vigorous Second Circuit opinions to consider if that Court decidеs one day to revisit a question that will rarely again be asked.
In this Circuit, a case may one day arise that cannot be disposed of under Kiobel II, at a time when a circuit split has opened, and when the prospect looms of many such cases. If and when that comes to pass, it may be worth our time to consider the issue in banc. That time may never come; it has certainly not arrived.
Notes
. This is a kind of transaction that can be done at an automated airport kiosk.
Concurrence Opinion
concurring in the denial of rehearing en banc:
Judge Pooler’s dissent from the denial of rehearing en banc calls to mind the insight of our esteemed late colleague, Judge Frank X. Altimari: “if attorneys want to know what the law is not, then they should read the dissent.”
Both sides of the Alien Tort Statute (“ATS”)
First, there is Judge Pooler’s untenable suggestion that “Kiobel II strongly suggests that corporate liability does exist under the ATS,”
Reading tea leaves, Judge Pooler and the panel divine significance from a single
Clearly not so. The Court’s statement “would be utterly incomprehensible” and “seem meaningless” only if one were to ignore the entire context in which it was written. Kiobel II was a case in which the Court explicitly declined to address the corporate-liability question, and focused instead on extraterritoriality.
In other words, for the purposes of its decision, the Court assumed that corporations could be held liable under the ATS. In light of this assumption, how could the Court possibly have discussed extraterritoriality without referring to “corporate presence”? The defendants were, after all, corporations. And corporations are “present” in a country in a completely different sense than are individuals.
Second, Judge Pooler argues that “the factual premise of the majority opinion in Kiobel I is incorrect,” because “[violations of the law of nations have been brоught against juridical entities, including against ships, throughout history in both domestic and international tribunals.”
But Judge Pooler’s analogy between an in rem action against a ship and an in personam action against a corporation is inapt. As the Supreme Court has explained, a ship is named as a defendant in an in rem action only “under an ancient admiralty fiction,” by which the ship is merely “assumed to be a person for the purpose of filing a lawsuit and enforcing a
In this respect, ships are no different from other inanimate objects, against which in rem actions have been brought regularly since the Founding under federal statutes prohibiting piracy, slavery, and other law-of-nations offenses. Following Judge Pooler’s analogy to its logical conclusion, these cases must stand for the proposition that sealskins,
By contrast to an in rem action against a ship, an in personam action against a corporation need not rely on any such fiction. This is because, unlike a ship, a corporation is truly “distinct from” its “corporate owner/employee,” and is “a legally different entity with different rights and responsibilities due to its different legal status.”
For these reasons — and for the reasons forcefully stated by Judge Jacobs in his separate concurrence, which I join in its entirety — I concur in the denial of rehearing en banc.
. Frank X. Altimari, The Practice of Dissenting in the Second Circuit, 59 Brook. L.Rev. 275, 284 (1993); see also Kobach v. U.S. Election Assistance Comm’n,
. United States v. Stewart,
. 28U.S.C. § 1350.
. See generally Kiobel v. Royal Dutch Petroleum Co.,
. Pooler, J., op. at 44 (emphasis in original).
. In re Arab Bank, PLC Alien Tort Statute Litig.,
. Kiobel II,
. Pooler, J., op. at 44 (emphasis in original).
. In re Arab Bank,
. See Kiobel II,
. Cf. Shaffer v. Heitner,
. Arab Bank,
. Kiobel II,
. Pooler, J., op. at 43 (alterations omitted).
.
. Cont’l Grain Co. v. The FBL-585,
. Smith v. The Mormacdale,
. See Davison v. Seal-Skins,
. See United States v. One 1998 Mercury Sable,
. See United States v. Sabhnani,
. See Martin v. One Bronze Rod,
. Cedric Kushner Promotions, Ltd. v. King,
. Cook Cty., Ill. v. United States ex rel. Chandler,
Dissenting Opinion
dissenting from the denial of rehearing en banc:
By denying rehearing en banc in this case, respectfully, this circuit yet again
“[W]e have not in the past denied in banc review because the opinion is too wrong,” United States v. Bert,
I
A
The ATS grants U.S. district courts 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.” 28 U.S.C. § 1350. “[B]y its terms[,] [the ATS] does not distinguish among classes of defendants.” Argentine Republic v. Amerada Hess Shipping Corp.,
From the very outset, the panel majority erred by framing the question in the wrong way: whether there is a “norm of corporate liability under customary international law.” Id. at 131. “International law does not work that way.” William S. Dodge, Corporate Liability Under Customary International Law, 43 Geo. J. Int’l L. 1045, 1046 (2012). Customary international law does not contain general norms of liability or non-liability applicable to actors. Id. As the United States argued as amicus curiae in Kiobel II, the Kiobel I majority erred by “examin[ing] the question of corporate liability in the abstract;” rather, the court should have inquired “whether any of the particular international-law norms [at issue in thе case] ... exclude corporations from their scope.” Brief for the United States as Amicus Curiae Supporting Petitioners at 21, Kio-bel II,
B
The Kiobel I majority’s errors have long been traced to the majority’s “misreading of footnote 20 in the Sosa opinion.” U.S. Amicus Br., Kiobel II, at *16; accord Kio-bel I,
C
The Kiobel I majority also justified its conclusion by noting that “no international tribunal has ever held a corporation liable for a violation of the law of nations” and that “no corporation has ever been subject to any form of liability under the customary international law of human rights.” Kiobel I,
Indeed, “[tjhere is always a first time for litigation to enforce a norm; there has to be.” Flomo,
In any event, “[tjhe factual premise of the majority opinion in [Kiobel I ] is incorrect.” Flomo,
D
Finally, the majority’s policy concern, that recognizing corporate liability under the ATS “would potentially create friction in our relations with foreign nations and, therefore, would contravene the international comity the [ATS] was enacted to promote,” Kiobel I,
II
Even though Kiobel I is almost certainly incorrect, a majority of this court seems to believe that rehearing in this case would be a fruitless endeavor because, as a practical matter, the class of cases foreclosed by Kiobel I have been foreclosed by Kiobel II. Not only is this pure speculation, but just because Kiobel II erected a sluice where Kiobel I built a dam does not mean we should not dismantle Kiobel I’s barrier to viable cases under the ATS — even if they amount to just a trickle, the litigants dn those cases should have access to the courts.
If anything, Kiobel II strongly suggests that corporate liability does exist under the ATS. The Court’s concluding discussion in Kiobel II, particularly its statement that “it would reach too far. to say that mere corporate presence suffices” to displace the presumption of extraterritoriality, would be utterly incomprehensible to include if the Court also believed corporations were categorically immune from suit under the ATS. See
In any event, the insistence by some members of this court that Kiobel II forecloses this case and others like it seeks to draw far too much guidance from an opinion as split and abstruse as Kiobel II.
In 'short, Kiobel I was wrong. Every circuit to address the matter agrees that it is wrong. It is a disservice to the litigants in this case, and every other litigant with a potentially viable ATS case against corporate defendants, to rely on the Supreme Court to fix our error. Kiobel I places an unnecessary roadblock in front of litigation that can continue to help clarify a statute that, since Filartiga v. Pena-Irala,
. My colleagues defending the decision to deny rehearing have not even attempted to explain how the rest of the cirсuits are incorrect. Instead, they have focused almost all their attention on their speculative belief that however wrong Kiobel I may be, we need not correct the opinion because, as a practical matter, claims against corporations have been entirely foreclosed by the Supreme Court's decision upholding our panel’s judgment on entirely different grounds. See Kiobel v. Royal Dutch Petroleum Co.,
. For example, Justice Kennedy’s concurrence confirms that Kiobel II "leave[s] open a numbеr of significant questions regarding the reach and interpretation of the Alien Tort Statute.”
. In this circuit, we have held that "neither the U.S. citizenship of defendants, nor their presence in the United States, is of relevance for jurisdictional purposes,” Mastafa v. Chevron Corp.,
Dissenting Opinion
dissenting from the denial of rehearing en banc:
I respectfully dissent from the denial of rehearing en banc, for the reasons set forth in Judge Pooler’s dissent, the panel decision in this case, In re Arab Bank, PLC Alien Tort Statute Litigation,
Judge Jacobs writes, that the panel “steered deliberately into controversy” by deciding the appeal on the basis of Kiobel I when it could have affirmed “straightforwardly” on the basis of Kiobel II, Kiobel v. Royal Dutch Petroleum Co.,
First, as to affirmance, the district court dismissed plaintiffs’ claims under the Alien Tort Statute (the “ATS”) solely on the
Second, as to remand, if Kiobel I were correctly decided, this case would be over and there would be no reason to remand. If Kiobel I were correctly decided, there would be no reason to ask the district court and the parties to probe into the complex and fact-intensive issues of corporate presence аnd corporate intent, for there would be no subject matter jurisdiction under the ATS. If the bright-line rule is that corporations may not be sued under the ATS, there would be no reason to remand the case for further expensive and time-consuming litigation, including discovery and further motions. Moreover, if, on remand, the district court were to conclude that the claims met the requirements of Kiobel II, the corporate liability issue would still have to be decided, and all of the effort on remand would have been for naught.
Judge Jacobs also contends that there is no circuit split and that “[t]he panel opinion conjures up a circuit split.” Jacobs, /., op. at 37. The cases sрeak for themselves, and they are clearly at odds with our holding in Kiobel I:
• The D.C. Circuit has held that corporate defendants are subject to liability under the ATS, observing that “[t]here are a number of problems with the analysis in [.Kiobel I ]” and explicitly declining to follow it, Doe VIII v. Exxon Mobil Corp.,
• The Seventh Circuit has held that “corporate liability is possible under the [ATS].” Flomo v. Firestone Nat. Rubber Co.,
• The Ninth Circuit has held that “there is no categorical rule of corporate immunity or liability” under the ATS, relying on Judge Leval’s concurrence in Kiobel I. Doe I v. Nestle USA, Inc.,
• The Eleventh Circuit has held that “[t]he text of the [ATS] provides no express exception for corporations, and the law of this Circuit is that this statute
• The Fourth Circuit has permitted ATS claims to proceed against a corporate defendant. In Al Shimari v. CACI Premier Technology, Inc., the Fourth Circuit reviewed the district court’s dismissal of the plaintiffs’ ATS claims for lack of jurisdiction.
While it is true, as Judge Jacobs notes, that some of these cases have been or could be resolved on Kiobel II grounds, there is no reason, again, why the courts and litigants in these cases should be litigating the complex, factual “touch and concern” issues if, indeed, corporations are not liable under the ATS as a matter of law.
Finally, the concurrence suggests that there is no reason for en banc review because “[t]he principle of Kiobel I has been largely overtaken, and its importance for outcomes has been sharply eroded.” Jacobs, J., op. at 35. This argument, it seems to me, assumes that no ATS case will present claims that touch and concern the United Statеs. That is not so, as Al Shimari and Doe I v. Nestle USA show. There will be cases where plaintiffs can meet the' requirements of Kiobel II. And in those cases, even assuming the claims are meritorious, in this Circuit the plaintiffs will be precluded from seeking relief under this Court’s ruling in Kiobel I that corporations categorically are not subject to suit under the ATS. We are the only Circuit to reach that conclusion, and we should have taken this opportunity to reconsider the matter.
I would grant the petition for rehearing en banc.
. Because he is a senior judge, the author of the panel opinion could not vote on whether to rehear this case en banc. Had the active judges voted in favor of such a rehearing, however, he would have been entitled to sit on the en banc court.
. Thе district court in a similar case against Arab Bank held that the plaintiffs there met the mens rea threshold. See Lev v. Arab Bank, PLC, No. 08 CV 3251(NG),
. While the Ninth Circuit did remand for the district court to consider Kiobel II, it noted that "the plaintiffs contend that part of the conduct underlying their claims occurred within the United States.”
. See also Beanal v. Freeport-McMoran, Inc.,
Lead Opinion
ORDER
Following disposition of this appeal, an active judge of the Court requested a poll on whether to rehear the case en banc. A poll having been conducted and there being no majority favoring en banc review, rehearing en banc is hereby DENIED.