Lead Opinion
This suit arises out of the 1998 bombing of a Colombian village by members of the Colombian Air Force (CAF). Plaintiffs,
In a prior appeal, we declined to decide the issues presented and remanded the case to the district court for two purposes: first, “to consider whether a prudential exhaustion requirement applies in this case, and if so, whether that requirement bars any claims in this case,” and, second, to “consider the effect, if any,” of two Colombian court opinions related to the bombing. Mujica v. Occidental Petroleum Corp.,
We hold that Plaintiffs lack a valid claim under either the Torture Victim Protection Act (TVPA) or the Alien Tort Statute (ATS). We affirm the district court’s judgment of dismissal with respect to Plaintiffs’ state-law claims, but we do so on the ground of international comity. Although the district court rejected dismissal on that ground, we conclude that the district court abused its discretion by applying the incorrect legal standard in its comity analysis, specifically by concluding erroneously that a “true conflict” between domestic and foreign law is required for the application of international comity in all circumstances. Mujica I,
I. BACKGROUND
A. The 1998 Bombing
The district court described the facts of the underlying events as follows:
The instant case arises from a bombing that occurred in Santo Domingo, Colombia on December 13, 1998. In 1998, Plaintiffs lived in Santo Domingo. The Defendants, Occidental Petroleum Corp. (“Occidental”) and AirSean, Inc., are both American companies; the former is located in Los Angeles, the latter in Florida. Defendant Occidental operates, as a joint venture with the Colombian government, an oil production facil*585 ity and pipeline in the area of Santo Domingo.
Plaintiffs allege the following relevant facts. Since 1997, Defendant AirSean has provided security for Defendant Occidental’s oil pipeline against attacks from left-wing insurgents. Prior to 1998, Defendants worked with the Colombian military, providing them with financial and other assistance, for the purpose of furthering Defendant Occidental’s commercial interests. On several occasions during 1998, Defendant Occidental provided Defendant AirSean and the Colombian military with a room in its facilities to plan the Santo Domingo raid. Defendant AirSean and the Colombian Air Force (“CAF”) carried out this raid for the purpose of providing security for Defendant Occidental (i.e., protecting its oil pipeline) and was not acting on behalf of the Colombian government. During the raid, three of Defendant AirScan’s employees, along with a CAF liaison, piloted a plane with CAF markings and that was paid for by Defendant Occidental. From this airplane, Defendant AirSean provided aerial surveillance for the CAF, helping the CAF identify targets and choose places to deploy troops.
On December 13, 1998, residents of San-to Domingo saw low-flying CAF helicopters overhead and attempted to communicate that they were civilians by lying down on the road and covering then-heads with white shirts. Soon thereafter, several witnesses saw an object (or several objects) drop from one of the CAF helicopters. One of the cluster bombs dropped by the CAF exploded directly in the town of Santo Domingo, destroying homes and killing seventeen civilians and wounding twenty-five others. Of the seventeen killed, six were children. During the attack, the CAF helicopters knowingly fired on civilians attempting to escape and on those who were trying to carry the injured to a medical facility. Soon thereafter, other CAF troops entered the town, blocked civilians from leaving, and ransacked their homes.
While the purpose of the Santo Domingo raid was to protect Defendant Occidental’s pipeline from attack by left-wing insurgents, no insurgents were killed in the attack. These insurgents were located at least one to two kilometers outside of Santo Domingo. Defendants knew that the insurgents were not in Santo Domingo but carried out the attack nonetheless.
Mujica II,
B. Proceedings in Colombian Courts
The 1998 Santo Domingo bombing led to two legal actions in Colombia: a criminal action brought by the Colombian government against three CAF officers who were allegedly responsible for the bombing and a civil suit brought by Plaintiffs (and several other persons) against the government of Colombia.
1. Criminal Action
The Colombian Public Prosecutor’s Office opened a preliminary investigation into the Santo Domingo bombing the day after it occurred, on December 14, 1998. On September 21, 2007, in In re Cesare Romero Pradilla, et al., the Twelfth Criminal Court of the Circuit of Bogota, Colombia convicted three CAF officers of manslaughter. On September 24, 2009, the same court affirmed the verdict on remand from a higher court, finding that all three defendants were guilty of manslaughter and related crimes. The court then sentenced two of them to no more than 380 months’ imprisonment and one to no more than seventy-two months’ imprisonment.
2. Civil Action
On September 25, 2000, Plaintiffs (and others) filed a complaint against the Republic of Colombia, the Colombian Ministry of Defense, the Colombian Army, and the CAF, in regional court in Arauca, the region in Colombia where Santo Domingo is located. Plaintiffs sought damages for wrongful death and physical and psychological injuries to Plaintiffs and their relatives. On May 20, 2004, the Arauca court entered judgment in favor of Plaintiffs and awarded damages amounting to about $700,000. On December 13, 2007, in Mario Galvis Gelves, et al. v. The Nation, a Colombian appellate court approved a settlement between Plaintiffs and the Colombian government, holding that “[t]he liability of the defendant can be found, because the incident that gave rise to the settlement has been proven.” On April 27, 2009, the Director of Legal Affairs of the National Defense Ministry directed the payment of 1,393,649,934.73 Colombian pesos (roughly $737,000) to the victims through their attorney. Nothing in the record suggests that the victims did not receive that settlement payment.
C. Proceedings Below
While the Colombian litigation was ongoing, Plaintiffs filed a complaint in United States district court on April 23, 2003. The complaint, as amended, brought claims for extrajudicial killing; torture; crimes against humanity; cruel, inhuman, and degrading treatment; and war crimes under the Alien Tort Statute (ATS), 28 U.S.C. § 1350, and the Torture Victims Protection Act (TVPA), 28 U.S.C. § 1350 Note. Plaintiffs also filed state law claims for wrongful death, intentional infliction of emotional distress, negligent infliction of emotional distress, and violations of California Business & Professional Code § 17200. See Mujica II,
In January 2004, the district court requested the views of the U.S. Department of State. Id. at 1169. In April 2004, the Department of State submitted a Statement of Interest (SOI) indicating that it did not have a position on the foreign policy implications of the action. Id. Eight months later, however, the Department of State submitted a second SOI indicating that it now opposed the litigation as adverse to U.S.-Colombian relations. The Department of State attached to the SOI two short démarches
1. Mujica I — Forum, Non Conveniens and International Comity
In Mujica I,
With regard to comity, which the court analyzed alongside the related doctrine of international abstention, the court held that it did not apply. It adopted Plaintiffs’ argument that “at least in the Ninth Circuit, the application of international comity is generally limited to cases where there is a ‘true conflict’ between domestic and foreign law.” Id. at 1155. Under that standard, the court explained that there was no “true conflict” between United States law and Colombian law: “Since the Court has not made any findings of liability or provided any remedies, there is no present conflict between the Court’s proceeding with the instant case and any proceedings in Colombia.” Id. at 1156. The district court acknowledged that there was “the possibility of an inconsistency between a future, potential judgment of this Court and a judgment of a Colombian court,” id., but the court refused to dismiss the suit “without the knowledge that Plaintiffs have an alternative forum in which they are able to obtain a remedy.” Id. at 1163— 64.
2. Mujica II — Political Question Doctrine
In a second opinion issued the same day, Mujica II,
The district court held that two Baker factors supported dismissal of the suit— factor four, “impossibility of a court’s undertaking independent resolution [of the issue] without expressing lack of the respect due coordinate branches of government,” and factor five, the “unusual need for unquestioning adherence to a political decision already made.” Baker,
Plaintiffs appealed the district court’s order granting Defendants’ Rule 12(b)(6) motion and “further appealed] any and all adverse rulings on issues in the Court’s second order entered on June 29, 2005, ... [and] further appealed] any and all prior rulings adverse to Plaintiffs.” On July 27, 2005, Occidental filed a ‘‘notice of conditional cross-appeal,” appealing the district court’s denial of Defendants’ motion to dismiss the action on forum non conveniens and international comity grounds, as well as any adverse judgment in the court’s ruling granting Defendants’ Rule 12(b)(6) motion. AirSean filed a nearly verbatim cross-appeal the next day.
In March 2006, during the pendency of the appeal, the United States filed an ami-cus brief on behalf of Defendants urging affirmance “[bjecause adjudication of this case would adversely affect the United States’ foreign policy interests.” And while it agreed with the ultimate disposition of the case on political question and preemption grounds, it also believed “that dismissal of the plaintiffs’ claims is most appropriate as a matter of international comity.”
In May 2009, we remanded the case to the district court in an order that reads, in its entirety, as follows:
In light of the intervening authority of Sarei v. Rio Tinto,550 F.3d 822 (9th Cir.2008) (en banc) [“Sarei II”], this case is remanded to the district court to consider whether a prudential exhaustion requirement applies in this case, and if so, whether that requirement bars any claims in this case. On remand, the district court should also consider the effect, if any, of the decision of the Council of State of the Republic of Colombia in Mario Galvis Gelves, et al. v. The Nation, slip op. (Council of State, Rep. of Colombia, Ad. Law Div., Sec. 3, Dec. 13, 2007) and the decision of the Court No. 12 for Criminal Matters of the Circuit of Bogot[a] of the Republic of Colombia in In re Cesare Romero Pradilla, et al., slip op. (Sept. 21, 2007).
Mujica III,
4. Mujica TV — Prudential Exhaustion and the Colombian Cases
By the time we heard the appeal in Mujica III, the original district court judge, Judge William J. Rea, had passed away. Accordingly, on remand, the case was assigned to Judge George H. Wu, who, in accordance with our order, issued a “Ruling on Limited Remand as to the Prudential Exhaustion Issue.”
In response to our first question, the district court held that “there is a sufficiently strong nexus between the claims asserted in this lawsuit and the United States that local exhaustion should not be required.” The court found that, “even if the nexus [to the United States] were held to be weak, ... Occidental ha[d] not shown that the claims in this case do not implicate matters of universal concern,” such as “war crimes and indiscriminate violent assaults on people at large.” Thus, “Occidental ha[d] not shown that those claims against Defendants in this case [were] likely to be subject to an exhaustion requirement.”
The court then addressed the second question we had posed on remand: the effect of the successful civil and criminal litigation brought in Colombia. Judge Wu came to a different conclusion from Judge Rea. Judge Wu held that remedies were available in Colombia, whether their availability was “assessed as of now or as of 2003 when the case was filed” and that, despite Judge Rea’s contrary conclusion, Occidental “seem[ed] to have met its initial burden of showing the availability of local remedies.” The court noted that Dr.
On April 7, 2010, Defendants AirScan and Occidental filed essentially identical “Notice[s] of Conditional Appeal,” which noted that “[b]y declining to impose an exhaustion requirement on limited remand, the district court’s Order on Remand leaves unchanged the prior judgment of dismissal with prejudice in this case, and thereby effectively re-enters that judgment as of the date of entry of the Order on Remand.” On April 19, 2010, Plaintiffs filed a “Notice of Cross-Appeal” challenging the district court’s March 8, 2010 ruling.
II. STANDARD OF REVIEW
Dismissal for failure to state a claim under Rule 12(b)(6) is reviewed de novo. Stone v. Travelers Corp.,
We review the district court’s decision regarding international comity for abuse of discretion. See Allstate Life Ins. Co. v. Linter Grp. Ltd.,
III. APPELLATE JURISDICTION
Defendants question whether Plaintiffs’ April 19, 2010, notice of appeal following the district court’s decision on remand was timely and, accordingly, whether we have jurisdiction under 28 U.S.C. § 1291. Defendants argue that the district court’s
Defendants have misapprehended the limited nature of our original 2009 remand. In that order, we neither addressed any of the issues raised by Plaintiffs’ appeal nor vacated the June 28, 2005, district court order dismissing the case. See Mujica III,
IV. FEDERAL CLAIMS
We have no need to consider whether any prudential doctrines counsel dismissing Plaintiffs’ federal claims under the TVPA and the ATS, as Plaintiffs have no viable claim under either statute.
A. TVPA Claims
The TVPA authorizes a federal cause of action against any “individual” who commits an act of torture or extrajudicial killing “under actual or apparent authority, or color of law, of any foreign nation.” 28 U.S.C. § 1350 Note. In a case decided while this appeal was pending, the Supreme Court examined the TVPA and
Defendants in this case are both corporations rather than natural persons. In light of Mohamad, therefore, Plaintiffs’ TVPA claims must be dismissed. Accord, e.g., Cardona v. Chiquita Brands Int’l, Inc.,
B. ATS Claims
The ATS provides that “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. The ATS “is a jurisdictional statute creating no new causes of action,” although the First Congress adopted it on the assumption that “district courts would recognize private causes of action for certain torts in violation of the law of nations. ...” Sosa v. Alvarez-Machain,
“The question here is not whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign.”
In Kiobel, Nigerian petitioners who later became U.S. residents brought tort claims under the ATS, based on events in Nigeria, against foreign corporations that had only attenuated contacts with the United States — listings on the New York Stock Exchange and an affiliation with a public relations office in New York. See
Although the Court did not hold that plaintiffs may never bring ATS claims based on extraterritorial conduct, it made clear that, in order to be viable, any such claims must “touch and concern the territory of the United States” and “must do so with sufficient force to displace the presumption against extraterritorial application.” Id. Plaintiffs contend that their claims meet this requirement because Defendants are U.S. corporations and because Plaintiffs have alleged that “actions or decisions furthering the [purported] conspiracy” between Defendants and the CAF “took place in the United States.” We disagree.
In apparent recognition of this defect in their complaint, Plaintiffs have requested leave to amend their complaint in light of Kiobel. The dissent likewise urges us to grant this relief. But although we acknowledge that Kiobel worked a significant change in the legal prerequisites for an extraterritorial ATS claim, and that such intervening changes in the law often warrant granting parties leave to amend, we do not believe that granting Plaintiffs leave to amend would serve any purpose. See, e.g., Bonin v. Calderon,
Admittedly, Kiobel (quite purposely) did not enumerate the specific kinds of connections to the United States that could establish that ATS claims “touch and concern” this country. See Kiobel,
Our reading of Kiobel is in accord with that of other federal courts. So far as we can ascertain, since Kiobel was decided, only one court has so much as suggested that an ATS claim is always viable when the defendant is a U.S. citizen or corporation. Every remaining federal court has dismissed ATS claims whose only connection to this country was the defendant’s U.S. citizenship.
Plaintiffs point to a legal opinion written by Attorney General William Bradford in
The Bradford Opinion is too slender a reed, however, to support the broad assertion of ATS jurisdiction that Plaintiffs ask of us. The Supreme Court considered the Bradford Opinion in Kiobel and found that it “defies a definitive reading” and “hardly suffices to counter the weighty concerns underlying the presumption against extraterritoriality.” Kiobel,
We acknowledge that judges — including our dissenting colleague in this case — have eloquently argued that the United States has an obligation to provide redress for aliens injured whenever American citizens or corporations violate the law of nations. See, e.g., Cardona,
To conclude, Plaintiffs’ ATS claims against Defendants are based solely on conduct that occurred in Colombia, and the only nexus with the United States that Plaintiffs allege is the fact that both Defendants are U.S. corporations. We hold that these ATS claims do not touch and concern the territory of the United States “with sufficient force to displace the presumption' against extraterritorial application,” Kiobel,
V. INTERNATIONAL COMITY
Finally, we dismiss Plaintiffs’ state-law claims based on the doctrine of interná-
The federal common law doctrine of international comity is applicable to these state law claims notwithstanding the general rule that federal courts apply California’s substantive law when sitting in diversity. Erie R.R. Co. v. Tompkins,
International comity “ ‘is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.’ ” In re Simon,
Comity is not a rule expressly derived from international law, the Constitution, federal statutes, or equity, but it draws upon various doctrines and principles that, in turn, draw upon all of those sources. It thus shares certain considerations with international principles of sovereignty and territoriality; constitutional doctrines such as the political question doctrine; principles enacted into positive law such as the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1830, 1602, 1611 (2006); and judicial doctrines such as forum non con-veniens and prudential exhaustion.
International comity is a doctrine of prudential abstention, one that “counsels voluntary forbearance when a sovereign which has a legitimate claim to jurisdiction concludes that a second sovereign also has a legitimate claim to jurisdiction under principles of international law.” United States v. Nippon Paper Indus. Co.,
There are essentially .“two distinct doctrines [which] are often conflated under the heading ‘international comity.’” In re S. African Apartheid Litig.,
The second strain of the doctrine is referred to as “comity among courts” or adjudicatory comity, which “may be viewed as a discretionary act of deference by a national court to decline to exercise jurisdiction in a case properly adjudicated in a foreign state.” Maxwell,
A. Standards for Applying Comity
1. Whether Adjudicatory Comity Requires a “True Conflict”
The Supreme Court’s most recent most discussion of international comity was in Hartford Fire,
We do not think that Hartford Fire stands for the proposition adopted by the district court and urged by Plaintiffs. Hartford Fire involved the reach of U.S. antitrust laws, which applied extraterrito-rially; in that case, the question was whether a U.S. district court could exercise jurisdiction over antitrust claims filed against a group of London reinsurers.
The Supreme Court stated that the “only substantial question in th[e] litigation” was “whether there [wa]s in fact a true conflict between domestic and foreign law.” Id. at 798,
In light of the lack of conflict, the Court held that there was “no need ... to address other considerations that might inform a decision to refrain from the exercise of jurisdiction on grounds of international comity.” Id. Justice Scalia dissented from that part of the opinion and pointed out that “prescriptive comity” or “the practice of using international law to limit the extraterritorial reach of statutes” was “firmly established.” Id. at 817-18 (Scalia, J., dissenting).
Since the majority did not address the “other considerations” bearing on comity, the Court’s Hartford Fire analysis “left unclear whether it was saying that the only relevant comity factor in that case was conflict with foreign law ... or whether the Court was more broadly rejecting balancing of comity interests in any case where there is no true conflict.” Harold Hongju Koh, Transnational Litigation in United States Courts 80 (2008). We think that Hartford Fire does not require proof of a “true conflict” as a prerequisite for invoking the doctrine of comity, at least in a case involving adjudicatory comity. See id. (concluding that since such a reading of the case “would be a much more dramatic result for the Court to have reached sub silentio, I am inclined to doubt that it meant to rule so broadly”).
Since Hartford Fire, the circuits have refined the Court’s “true conflict” analysis and have generally required proof of such a conflict only in cases where prescriptive comity is at issue — that is, where a party claims that it is subject to conflicting regulatory schemes, such as antitrust laws or bankruptcy rules that apply extraterritorially.
By contrast,, the courts have not required proof of a true conflict — although they have considered such a conflict relevant — when considering adjudicatory comity. Instead, the courts have considered a range of factors when deciding whether to abstain from exercising jurisdiction due to
Our own decision in In re Simon — a prescriptive comity case — is consistent with this pattern. There, we considered whether a bankruptcy court could sanction a foreign creditor for pursuing collection of a foreign debt that had been discharged in bankruptcy.
We then turned to whether we were “require[d]” by comity to vacate the bankruptcy court’s injunction. Id. at 997. We noted that “[international comity in transnational insolvency proceedings must be considered in the context of bankruptcy theory.” Id. at 998. We then explained that the Bankruptcy Code “provides for a flexible approach to international insolvencies” in which there is general “deference to the country where the primary insolvency proceeding is located.” Id. The “sole, plenary insolvency proceeding” involving the debtor had been in the United States. Id. at 999. Because there were no “competing bankruptcy proceedings,”
Simply put, we do not interpret In re Simon — which referenced the concept of a “true conflict” in passing and in the specialized context of a bankruptcy statute that applied extraterritorially — to require proof of “true conflict” as an irreducible minimum for abstention in all comity cases.
Our other post-Hartford Fire cases also suggest that proof of “true conflict” is not a prerequisite to comity. In those cases we took account of whether there was a conflict between American and foreign law. Even when we did not find a conflict, we did not end our inquiry but moved on to consider other factors. For example, in Metro Industries, Inc. v. Sammi Corp.,
Similarly, in In re Grand Jury Proceedings,
As our decisions in In re Simon, Metro Industries, and In re Grand Jury Proceedings demonstrate, we have not read Hartford Fire as imposing a rigid new set of requirements for finding comity. At least in cases considering adjudicatory comity, we will consider whether there is a conflict between American and foreign law as one factor in, rather than a prerequisite to, the application of comity.
Accordingly, the district court erred when it required the existence of a true conflict when it analyzed the application of international comity. And, since
Having determined that a true conflict is not always required for the application of adjudicatory comity and that the district court abused its discretion in concluding otherwise, we proceed to consider the proper framework for analyzing comity.
2. Factors Bearing on Adjudicatory Comity
Beyond the question of true conflict, courts have struggled to apply a consistent set of factors in their comity analyses. As one commentator has observed, because there is “no clear analytical framework for its exercise, ... courts have been left to cobble together their own approach to [international comity].” Childress III, supra, at 51. The district court in this case followed a three-part framework articulated by the Eleventh Circuit in Ungaro-Benages for the prospective application of international comity. See Mujica I,
The Ungaro-Benages framework is a useful starting point for analyzing comity claims, but the case offers no substantive standards for assessing its three factors. Ungaro-Benages tells us to consider the respective interests of the United States and the foreign country, but it does not tell us what interests count or what makes a foreign forum adequate or inadequate. See id. at 1238-39. For those considerations, we may draw on our oft-cited opinion in Timberlane I. We note that the criteria we considered in that antitrust case
a. U.S. interests
The (nonexclusive) factors we should consider when assessing U.S. interests include (1) the location of the conduct in question, (2) the nationality of the parties, (3) the character of the conduct in question, (4) the foreign policy interests of the United States, and (5) any public policy interests. When some or all of a plaintiffs claims arise under state law, the state’s interests, if any, should be considered as well. The doctrine of comity is particularly concerned with “sovereign interests,” Childress III, supra, at 61-62, and the sovereign whose interests are relevant when a federal court is hearing state-law claims is as much the individual state— whose law the federal court must faithfully apply — as the United States.
We will discuss each of the foregoing factors in turn.
First, comity is most closely tied to the question of territoriality. We
Not surprisingly, U.S. courts have afforded far less weight, for comity purposes, to U.S. or state interests when the activity at issue occurred abroad. See Torres v. S. Peru Copper Corp.,
Second, we should take account of whether any of the parties are United States citizens or nationals, and also whether they are citizens of the relevant state. See Jota v. Texaco, Inc.,
Kiobel and the lower-court decisions that have followed in its wake confirm the importance of these first two factors to courts’ jurisdictional analyses in cases involving international events. While Kiobel and its progeny specifically address the interpretation of a statute — the ATS — and not the prudential international comity doctrine, the guiding principle of those cases applies equally in the context of adjudicatory comity: the weaker the nexus between the challenged conduct and U.S. territory or U.S. parties, the weaker the justification for adjudicating the matter in
The third factor we should consider bearing on U.S. interests is the nature of the conduct in question. We should ask whether the action is civil or criminal; whether it sounds in tort, contract, or property; and whether the conduct is a regulatory violation or is a violation of international norms against torture, war crimes, or slavery. See Sosa v. Alvarez-Machain,
Fourth, we must take cognizance of the foreign policy interests of the United States. As we do when applying the political question, act of state, and foreign affairs doctrines, we must respect the Constitution’s commitment of the foreign affairs authority to the political branches. U.S. Const, art. I, § 8, cl. 3 (“The Congress shall have Power ... To regulate Commerce with foreign Nations”); art. II, § 2 (“[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties ... and he ... shall appoint Ambassadors, other public Ministers and Consuls); art. II, § 3 (“[The President] shall receive Ambassadors and other public Ministers”). See Garamendi
Courts have found that U.S. interests weigh against hearing cases where doing so would be harmful to U.S. foreign policy. See Hwang Geum Joo v. Japan,
We have treated differences in legal approach cautiously, however. Even when foreign practices may differ from American ones, we will respect those differences so long as the variance does not violate strongly-held state or federal public policy. See Belize Telecom, Ltd. v. Gov’t of Belize,
b. Foreign interests
The proper analysis of foreign interests essentially mirrors the consideration of U.S. interests. Foreign states, no less than the United States, have legitimate interests in regulating conduct that occurs within their borders, involves their nationals, impacts their public and foreign policies, and implicates universal norms. See Mich. Cmty. Servs., Inc. v. NLRB,
Accordingly, courts have considered the territoriality of the questioned activity, its effects, the nationality of the parties, and the interests of the foreign state when deciding whether to exercise jurisdiction. See Jota,
To illustrate, in Bi, the Second Circuit held that individual victims of the Bhopal gas leak disaster in India, which harmed almost exclusively Indians, did not have standing to challenge a settlement reached between India and the company responsible for the tort in light of an Indian law granting the Indian government exclusive standing to represent victims of the disaster.
c. The adequacy of the forum
The interests of the United States and the foreign government must be evaluated in light of the adequacy of the foreign
The Second Circuit, for example, has held that deference to the judgment of a “foreign court is appropriate so long as the foreign proceedings are procedurally fair and ... do not contravene the laws or public policy of the United States.” JP Morgan Chase Bank,
We are justly proud of our legal system. But we recognize that there are other legal systems that have effected, in different ways, our constitutional values of separation of powers, due process of law, and the equal protection of the law. Comity, as the “golden rule among nations,” compels us to “give the respect to the laws, policies and interests of others that [we] would have others give to [our] own in the same or similar circumstances.” Mich. Cmty. Servs., Inc.,
Accordingly, we proceed under the Un-garo-Benages framework as we have elaborated it from the case law, mindful that comity is circumstance-dependent and not susceptible to mechanical application. “Since comity varies according to the factual circumstances surrounding each claim for its recognition, the absolute boundaries of the duties it imposes are inherently uncertain.” Laker Airways,
. 1. U.S. Interests
At first blush, the United States’s interests in this case appear to be mixed. On the one hand, as we have explained, the conduct complained of — Occidental and AirScan’s alleged cooperation with the CAF in the bombing at Santo Domingo— took place entirely in Colombia. Plaintiffs have not adequately pled any factual matter suggesting that any planning or operations took place in the United States. All the Plaintiffs, moreover, are or were Colombian citizens and residents at the time of the bombings. Cf. Balintulo,
The United States, however, has spoken directly on the question of its interests in this case. The district court particularly credited the State Department’s Supplemental SOI and concluded it was “strong evidence that the United States, in the interest of preserving its diplomatic relationship with Colombia, prefers that the instant case be handled exclusively by the Colombian justice system.” Mujica I,
Second, the State Department wrote that it “believe[d] that foreign courts generally should resolve disputes arising in foreign countries, where such courts reasonably have jurisdiction and are capable of resolving them fairly. An important part of our foreign policy is to encourage other countries to establish responsible legal mechanisms for addressing and resolving alleged human rights abuses.” It warned that the instant case could give the impression that the U.S. government “does not recognize the legitimacy of Colombian judicial institutions” and that those “perceptions could potentially have negative consequences for our bilateral relationship with the Colombian government.” The State Department praised Colombia as one of the United States’ “closest allies in this hemisphere,” and it warned that lawsuits like this one “have the potential for deterring present and future U.S. investment in' Colombia.” Finally, the letter explained that “reduced U.S. investment in Colombia’s oil industry” might, in turn, “detract from the vital U.S. policy goal of expanding and diversifying our sources of imported oil.”
.The United States reiterated these interests in its amicus brief during the initial appeal. It wrote that “the particular foreign policy interests identified by the Unit
The Supreme Court has said that “should the State Department choose to express its opinion on the implications of exercising jurisdiction over particular petitioners in connection with their alleged conduct, that opinion might well be entitled to deference as the considered judgment of the Executive on a particular question of foreign policy.” Republic of Austria v. Altmann,
That guidance is particularly apt here. This is not a ease in which the State Department has issued no SOI or an equivocal SOI and the United States’ position might be less entitled to deference. See, e.g., Gross,
California’s interest in this case weighs somewhat more in favor of our adjudicating Plaintiffs’ claims than does the United States’ national interest. We have previously acknowledged, for example, that California has a “significant interest in providing a forum for those harmed by the actions of its corporate citizens.” Carijano,
2. Colombian Interests
We next consider the strength of Colombia’s interest in litigating the matter. See Ungaro-Benages,
Although Colombia’s position is not detailed, “inherent in the concept of comity is the desirability of having the courts of one nation accord deference to the official position of a foreign state, at least when the position is expressed on matters concerning actions of the foreign state taken within or with respect to its own territory.” Jota,
This situation thus stands in clear contrast to other cases where a foreign state did not express an interest in having its courts serve as a forum for relevant litigation. See Abad v. Bayer Corp.,
Under the comity doctrine, we seek “to foster international cooperation and encourage reciprocal recognition of U.S. judgments in foreign courts.” United States v. One Gulfstream G-V Jet Aircraft,
Accordingly, we find that Colombia’s interest in serving as the exclusive forum for this litigation is strong.
3. Adequacy of the Colombian Forum
Finally, we turn to the adequacy of the foreign forum. Ungaro-Benages,
On remand in 2010, we directed the district court (Judge Wu) to consider the prudential exhaustion issue and the effect of the Galvis Gelves and Romero Pradilla matters, a directive which necessarily required it to reevaluate the adequacy of the alternative forum. With the benefit of the subsequent Colombian decisions, Judge Wu came to a different conclusion than Judge Rea.
As an initial matter, Judge Wu applied a burden-shifting standard: once a defendant shows that a foreign forum would have jurisdiction and would provide a remedy for a meritorious claim, the party “asserting inadequacy or delay must make a powerful showing.” Tuazon v. R.J. Reynolds Tobacco Co.,
Under this standard, the district court held that “Occidental seems to have met its initial burden of showing the availability of local remedies.” In particular, Occidental had consented to jurisdiction in Colombia, and Plaintiffs could have proceeded in a separate suit against Defendants in Colombia at the time of their initial Colombian litigation. The court reviewed Plaintiffs’ assertion that they could not practically have brought suit in Colombia because they feared physical danger and had fled. The court noted that Occidental “at least refuted some of Plaintiffs’ contentions regarding the
We credit Judge Wu’s finding of adequacy as superseding the earlier, contrary finding.
Considering the significant success Plaintiffs have had in litigation against the Colombian government and the convictions Colombia secured against the individuals
Relying on the expert testimony in the record, we conclude that Plaintiffs could have originally sued Defendants in Colombia when they sued the government, but they chose not to do so. Plaintiffs pursued litigation against the Colombian government despite fears of physical danger and, even conceding Plaintiffs’ legitimate fears, they “have not shown that their ‘physical presence in [Colombia] is required to pursue the civil action.’ ” Argueta v. Banco Mexicano, S.A.,
Nor is there anything in the record to suggest that the Colombian courts’ decisions resulted in “manifest injustice” or violated “fundamental standards of procedural fairness.” JP Morgan Chase Bank,
In light of Plaintiffs’ substantial victory against the Colombian government, they are barred by Colombian law from a secondary recovery from Defendants. But Colombia’s single-recovery rule does not render the forum inadequate. See Piper Aircraft Co.,
Any lack of a remedy against Defendants thus stems from Plaintiffs’ failure to sue Defendants in Colombia rather than from the inadequacy of the Colombian legal system. We note, in this regard, that American jurisdictions regularly apply single-recovery rules in other circumstances without violating fundamental standards of procedural fairness. See, e.g., Duran v. Town of Cicero, Ill.,
In sum, because of the strength of the U.S. government’s interest in respecting Colombia’s judicial process, the weakness of California’s interest in this case, the strength of Colombia’s interests in serving as an exclusive forum, and the adequacy of the Colombian courts as an alternative forum, we conclude that all of the claims before us are nonjusticiable under the doctrine of international comity. See Ungaro-Benages,
The crimes Plaintiffs allege are abominable, but the facts of this case nonetheless favor applying adjudicatory comity. Both nations have explicitly requested that our courts abstain from adjudicating a matter that was already litigated in Plaintiffs’ favor in an adequate alternative forum. The United States has articulated a strong interest in respecting the judicial process of Colombia and furthering the development of the rule of law there. The Colombian courts have shown themselves willing to vindicate Plaintiffs’ legitimate claims against that country’s government for its military’s acts, and the government has proven itself both willing and able to hold the individuals responsible for the bombing to account, as the Galvis Gelves and Romero Pradilla litigation show. Thus, our forbearance in this circumstance is “consistent with those notions of comity that lead each nation to respect the sovereign rights of other nations by limiting the reach of its laws and their enforcement.” Sosa,
VI. CONCLUSION
We affirm the district court’s judgment. We do not reach any of the other issues raised on this appeal.
AFFIRMED.
Notes
. We refer to Mr. Luis Mujica and the other Plaintiffs/Appellants/Cross-Appellants as "Plaintiffs” and to Occidental Petroleum and AirScan either as "Occidental” or "Defendants.” Defendant AirSean has adopted and joined Occidental’s briefing.
. A démarche is "[a]n oral or written diplomatic statement, esp[ecially] one containing a demand, offer, protest, threat, or the like.” Black's Law Dictionary 523 (10th ed.2014).
. Baker lists six alternative grounds under which a case may raise a nonjusticiable political question:
Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Baker,
. Federal Rule of Appellate Procedure 4 directs that, in a civil case, a notice of appeal "must be filed with the district clerk within 30 days after entry of the judgment or order appealed from." Fed. R.App. P. 4(a). Exceptions, which are not relevant here, extend that period to sixty days if one of the parties is the United States or a federal agency or officer; if certain other motions are filed; or if the appellant is an inmate. See Fed. R.App. P. 4(a)(1)(B), 4(a)(4), and 4(c).
. The district court held that all of Plaintiffs’ ATS claims were properly rooted in "binding customary international láw” norms, as required to state a claim after the Supreme Court's decision in Sosa, though it dismissed Plaintiffs’ claim for “cruel, inhuman, and degrading treatment” because the consequences of permitting ATS claims based on such conduct would be "impractical.” See Mujica II,
. The dissent reads the statements in Plaintiffs' reply brief regarding the contract between Occidental and AirScan far more credulously than we do, arguing that they constitute sufficient evidence of acts in the United States to preclude our dismissing these ATS claims. This credulous appraisal is simply mistaken. As the dissent itself acknowledges, Plaintiffs have, at most, "suggested" to the court that the contract “might have been executed within our borders.” It is not clear to us, moreover, that the bare fact that the Defendants' contract for "security services" was made in the United States would establish ATS jurisdiction in any event. In the only ATS case in which a court cited such a contract as evidence of U.S. conduct, the contract was far more specifically addressed to the activities that eventually gave rise to the plaintiffs' ATS claims. See Al Shimari v. CACI Premier Tech., Inc.,
The dissent also insists that "Plaintiffs are entitled to the reasonable inference” that the acts they allege occurred in Colombia "could not have occurred” without support from Defendants' "U.S. offices.” We disagree. The only pleaded facts the dissent cites to support that inference are Plaintiffs’ allegations that three participants in the bombing were employed by AirScan and that the bombing was planned at an Occidental site in Colombia. These highly circumstantial allegations do not support a sweeping inference that Defendants, through actions in the United States, took sufficient part in the bombing to be subject to ATS jurisdiction under Kiobel. See Balintulo v. Daimler AG,
. The dissent cites cases that it claims demonstrate that other courts of appeals have rejected this view of Iqbal. To the extent that any of those decisions suggests that courts retain discretion to permit discovery whenever a plaintiff has failed to satisfy Rule 8’s plausibility standard, it is simply incompatible with Iqbal and Twombly. See Iqbal,
. Not content simply to disagree with the foregoing futility analysis, the dissent also suggests that we should not have undertaken it, leaving the question of futility of amendment to be addressed — if at all- — by the district court on a supplemented record. But as the dissent acknowledges, the parties have already been litigating this case for nearly a decade at the motion-to-dismiss stage. Judicial economy and common sense both counsel that we ought not prolong this case still further by remanding to the district court for a futility analysis when it is obvious to us that leave to amend is unwarranted. Accord Baloco v. Drummond Co., Inc.,
. The dissent suggests that we "essentially disregard[]” Defendants' U.S. citizenship, but we are hardly dismissing Defendants’ U.S. citizenship out of hand. We do not contend that this factor is irrelevant to the Kiobel inquiry; we merely hold that it is not disposi-tive of that inquiry. But see Mastafa v. Chevron Corp.,
. The dissent suggests otherwise, pointing to a concurring opinion in Kiobel in which four Justices suggested that a defendant’s U.S. citizenship would suffice for ATS jurisdiction. But that view did not command a majority and, as we discuss infra, at 594-95 & n. 11, every federal appellate and district court except one has rejected the view advocated by the dissent. We cannot accept that, by following that overwhelming body of authority, we have "improvidently extend[ed] Kiobel."
. See Cardona,
. The dissent argues that, the Bradford Opinion aside, "the principle that a sovereign may exercise jurisdiction to prescribe the conduct of its nationals outside its territory is widely recognized.” But even if that is so, the question before us is not whether the United States may regulate the conduct of U.S. nationals abroad, but whether it has done so via the ATS. Modern-day practices and norms do not help us answer that question.
. For example, we do not decide whether a California court would decline to reach these tort claims due to their extraterritorial nature, or whether the federal foreign affairs doctrine would preclude a California court from hearing these claims. See, e.g., Zschernig v. Miller,
The dissent believes, as we do, that Plaintiffs' state-law claims must be dismissed, but it argues that it is inappropriate for us to consider the international comity doctrine here before addressing the foreign affairs doctrine, which was one of the district court's original bases for dismissing these claims (along with the political-question doctrine). We disagree. We have not raised the question of international comity sua sponte; the district court fully considered the comity doctrine and the issue has been briefed and argued by both sides. As the dissent acknowledges, we are permitted to affirm the district court’s decision on any ground supported by the record, see, e.g., ASARCO, LLC v. Union Pac. R. Co.,
. "Case law equivocates between calling international comity a value and a rule. As a value, it reflects the sense that cases affecting foreign interests should be .decided in a manner that accounts for these interests in some way.” Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, 116 Yale L.J. 1170, 1180 (2007). As a rule, courts “cite international comity as an explanation for' outcomes that are not explicitly driven by” other international relations doctrines, such as extraterritoriality, foreign sovereign immunity, the act of state doctrine, and the Charming Betsy canon, which holds that "an ambiguous statute will be interpreted to avoid conflicts with international law.” Id. at 1179-80.
. See also Laker Airways Ltd. v. Sabena, Belgian World Airlines,
. Some commentators have identified other strains of international comity, including so-called “executive comity,” which “provides the basis for courts to invoke principles of deference to foreign sovereignty, as in cases involving the Foreign Sovereign Immunities Act [] and act of state doctrine," see Childress III, supra, at 47, but only the first two are relevant here.
. See generally Christen Broecker, The Clash of Obligations: Exercising Extraterritorial Jurisdiction in Conformance with Transitional Justice, 31 Loy. L.A. Int'l & Comp. L.Rev. 405, 454-56 (2009) (describing how some jurisdictions require a true conflict before triggering comity).
. The dissent seizes upon this language to argue that In re Simon was “not merely a prescriptive comity case,” but also an adjudicative-comity case. We are unconvinced. The Simon court emphasized the lack of "conflicting bankruptcy proceedings” in that case not because the court was conducting an adjudicative comity analysis but because that fact proved that HSBC was in no danger of being exposed to two conflicting bankruptcy schemes — a prescriptive-comity concern. The dissent’s argument on this point also ignores our post-Simon cases — cases that are inconsistent with the dissent's reading of Simon. See infra at 601-02.
. The Ungaro-Benages court articulated different standards for "retrospective” and "prospective” claims of adjudicatory comity. “When applied retrospectively, federal courts evaluate three factors: (1) whether the foreign court was competent and used 'proceedings consistent with civilized jurisprudence,' (2) whether the judgment was rendered by fraud, and (3) whether the foreign judgment was prejudicial because it violated American public policy notions of what is decent and just."
. Timberlane I articulated seven elements courts should weigh:
[1] the degree of conflict with foreign law or policy, [2] the nationality or allegiance of the parties and the locations or principal places of businesses or corporations, [3] the extent to which enforcement by either state can be expected to achieve compliance, [4] the relative significance of effects on the United States as compared with those elsewhere, [5] the extent to which there is explicit purpose to harm or affect American commerce, [6] the foreseeability of such effect, and [7] the relative importance to the violations charged of conduct within the United States as compared with conduct abroad.
.The Restatement lists a number of considerations for determining whether the exercise of jurisdiction is "unreasonable,” including:
(a) the link of the activity to the territory of the regulating state,'i.e., the extent to which the activity takes place within the territory, or has substantial, direct, and foreseeable effect upon or in the territory; (b) the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible*604 for the activity to be regulated, or between that state and those whom the regulation is designed to protect; (c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted!;] (d) the existence of justified expectations that might be protected or hurt by the regulation; (e) the importance of the regulation to the international political, legal, or economic system; (£) the extent to which the regulation is consistent with the traditions of the international system; (g) the extent to which another state may have an interest in regulating the activity; and (h) the likelihood of conflict with regulation by another state.
Restatement (Third) of Foreign Relations Law § 403(2) (1987).
. It bears mentioning that a state’s interest will not necessarily be in the application of its own law to a case. Here-, for example, although Plaintiffs pled California causes of action, if the case were to proceed"to litigation, the district court would follow California’s conflict-of-laws methodology, which calls for a governmental-interest analysis. See Klaxon Co. v. Stentor Elec. Mfg. Co.,
. Our decision in the context of the Hague Convention on the Civil Aspects of International Child Abduction is not contrary to these principles. In Asvesta v. Petroutsas,
. Were California to manifest a specific interest in redressing claims arising out of the Santo Domingo incident or in Colombia’s drug wars more generally, its interests could well be preempted by the political branches' foreign affairs power. " '[E]ven in [the] absence of a treaty' " or federal statute, a state may violate the constitution by 'establishing] its own foreign policy.’ " Deutsch v. Turner Corp.,
. These cases determined the adequacy of the alternative forum for forum non conve-niens purposes, although this analysis is "equally pertinent to dismissal on the grounds of comity.” Jota,
. The dissent takes us to task for our reliance on Judge Wu’s findings, dismissing Judge Wu’s determination of adequacy as "merely dictum” and the findings of a “substitute district judge.” But while we acknowledge that Judge Wu’s analysis was not addressed to the international comity doctrine, as Judge Rea's was, we cannot accept the dissent's contention that we should therefore privilege Judge Rea’s findings, which were based on a less complete record. Judge Wu was able to take into account new and important information that was unavailable to Judge Rea — namely, the subsequent developments in the Colombian proceedings — and his opinion is a valuable source of insight on this issue. The dissent does not and cannot offer any persuasive reason for ignoring Judge Wu’s opinion.
. The dissent dismisses these statements, arguing that there is "no basis” for the idea that Defendants would actually have submitted to jurisdiction in Colombia if they had been joined in the litigation there. But there is ample reason why they might have done so. Civil defendants often make such concessions in cases where they face a choice between litigating in an inconvenient and unattractive forum in the United States or a convenient forum abroad. See, e.g., Piper Aircraft Co. v. Reyno,
Concurrence Opinion
concurring in part and dissenting in part:
For over 11 years, plaintiffs
Instead, plaintiffs’ claims against these U.S. corporations, brought pursuant to the
A. Alien Tort Statute Claims
The ATS provides that “[t]he 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. In Kiobel, the Supreme Court held that this jurisdictional statute does not apply unless the ATS claims “touch and concern” the United States “with sufficient force to displace the presumption against extraterritorial application.”
In 2005, at the time the district court ruled on defendants’ Rule 12(b)(6) motion to dismiss, Kiobel had not yet begun its path to the Supreme Court. See Mujica v. Occidental Petroleum Corp.,
The majority reaches its decision by improvidently extending Kiobel. Kiobel is limited to ATS claims by foreign nationals against foreign corporations concerning activities taking place on foreign soil. The Kiobel Court was “careful to leave open” for “further elaboration and explanation” a “number of significant questions,” 133 5.Ct. at 1669 (Kennedy, J., concurring), including the extent to which ATS claims against entities incorporated and domiciled in the United States, like defendants in this case, are justiciable.. In a separate opinion in Kiobel, four justices indicated that they would conclude jurisdiction exists under the ATS based solely on the fact that “the defendant is an American national.” Id. at 1671 (Breyer, J., joined by
In concluding that a defendant’s incorporation within the United States is an insufficient basis for jurisdiction under the ATS and that plaintiffs must allege some “conduct” within our borders, the majority misconstrues Kiobel’s “touch and concern” test, which is focused on the connection between the ATS “claims” and the United States. See
The ATS was enacted by our First Congress as a means of vesting in the district courts jurisdiction to hear private causes of action for certain torts in violation of the law of nations, including piracy. See Sosa v. Alvarez-Machain,
Had plaintiffs conceded that no act related to the 1998 bombing in Santo Domingo occurred in the United States, the majority might have been justified in analyzing whether Kiobel should be extended to preclude ATS claims as to which the only “touch and concern” allegation is the fact of incorporation in the United States. Plaintiffs, however, suggested quite the opposite. They reminded us that the contract pursuant to which AirSean provided security services for Occidental in Colombia might have been executed within our borders. Cf. Al Shimari,
B. State Law Tort Claims
1. Foreign Affairs Doctrine
The district court concluded that the foreign affairs doctrine precluded plaintiffs’ wrongful death, intentional infliction of emotional distress, and negligent infliction of emotional distress claims. See Mujica,
2. International Comity Doctrine
Instead of addressing the ground on which the district court actually relied in reaching its decision, the majority focuses on the district court’s refusal to premise the dismissal of plaintiffs’ state law claims on the doctrine of international comity. Declining to decide a matter on the basis of international comity is a form of absten
The majority cites to a law review article that describes international comity as “one of the most important, and yet least understood, international law canons.” Donald Earl Childress III, Comity as Conflict: Resituating International Comity as Conflict of Laws, 44 U.C. Davis L.Rev. 11, 13 (2010). The majority’s opinion raises more questions than it answers. The article explains that international comity may take three forms: (i) legislative or prescriptive comity, involving the extraterritorial reach of domestic legislation; (ii) executive comity, which offers deference to foreign sovereignty; or (iii) adjudicative comity or the “comity of courts.” Id. at 47. To invoke legislative comity as a basis for abstaining from deciding the merits of a case, a court must conclude that a “true conflict between domestic and foreign law” exists. Hartford Fire Ins. Co. v. Cal.,
Adjudicative comity arises in two contexts: (i) determining the preclusive effect or enforceability of a foreign ruling or judgment; or (ii) evaluating whether to stay or dismiss an action in a domestic court in favor of either a pending or future proceeding in a foreign forum. See 44 U.C. Davis L.Rev. at 47-48. The Eleventh Circuit has grouped these situations in a slightly different manner, describing “retrospective” application of adjudicative comity as either according respect to foreign judgments or deferring to parallel foreign proceedings, and “prospective” application as occurring when a domestic action is stayed or dismissed based on the respective interests of the domestic and foreign governments and the adequacy of the foreign forum in potentially resolving the dispute. See Ungaro-Benages v. Dresdner Bank A G,
The Third Circuit has observed that, absent the “true conflict” required for legislative comity or a basis for “retrospective” application of adjudicative comity, United States courts “rarely” refrain from exercising their jurisdiction on the ground of international comity.
Along the way, the majority characterizes as an abuse of discretion the district court’s observation that, “at least in the Ninth Circuit, the application of international comity is generally limited to cases were there is a ‘true conflict’ between domestic and foreign law,” and its subsequent conclusion that “it must treat the existence of a ‘true conflict’ as a threshold requirement.” Mujica v. Occidental Petroleum Corp.,
I am also troubled by the majority’s application' of prospective adjudicative comity. When ruling on defendants’ motion to dismiss on forum non conveniens and international comity grounds, the district court concluded that Colombia was not, at that time, an adequate forum because plaintiffs would be barred from recovering against defendants because they had already received reparation from the Colombian government.
The remainder of the substitute district judge’s order on limited remand, in which he indicated his belief that defendants can prove the availability of local remedies for plaintiffs’ claims and plaintiffs’ failure to exhaust them, is merely dictum. The majority, however, credits it over the earlier contrary conclusion of the original district judge, which was necessary to his decision to deny defendants’ motion on forum non conveniens and international comity grounds. To elevate, in this manner, dictum that was uttered for an entirely different purpose, concerning a wholly separate legal doctrine, contradicts virtually every principle of stare decisis and is simply not-the way in which our courts should operate.
C. Conclusion
The majority needlessly announces novel standards that will' thwart the ability of not only these plaintiffs, but also of every other alien who seeks to hold a U.S. corporation accountable for atrocities committed abroad. Having enjoyed the benefits of incorporation within the United States', defendants in this case should also be required to answer in a court of the United States for any role they might have played in the 1998 bombing of Santo Domingo.
. Plaintiffs Luis Alberto Galvis Mujica ("Luis") and John Mario Galvis Mujica are brothers; plaintiff Mario Galvis Gelvez is their father. Certain of their claims, namely the claim under Cal. Bus. & Prof.Code §§ 17200 & 17204, and Luis's tort claims, were dismissed as time barred. Plaintiffs have not challenged such rulings on appeal.
. A prior panel of this Court remanded the matter for the district court to "consider whether a prudential exhaustion requirement applies in this case.” On remand, the case was reassigned, and the substitute judge devoted two pages of his order to the reasons why he was baffled by the directions on limited remand. Now that the matter has returned to us, defendants challenge whether we have jurisdiction. I agree with the majority that the case is properly before us on plaintiffs’ original notice of appeal.
. I do, however, concur with the conclusion that plaintiffs' claim under the Torture Victims Protection Act was appropriately dismissed because defendants are corporations.
.I would reverse the district court’s ruling on the political question doctrine. This case does not impact the relationship between the federal judiciary and the coordinate branches of the federal government. See Baker v. Carr, 369 U.S. 186, 210,
. The majority suggests that the pleading requirements of Rule 8 must be satisfied "before the discovery stage, not after it,” citing Ashcroft v. Iqbal,
. The majority’s reliance on Bonin v. Calderon,
. The majority incorrectly suggests that the opinion of these four Justices, concerning the sufficiency of U.S. citizenship to confer jurisdiction under the ATS, did not carry the day. Kiobel was decided on other grounds, and the Supreme Court explicitly left for another day the question presented in the instant case. The day for decision has now come, and we should accept the invitation of the concurring Justices and hold that U.S. citizenship is enough.
. In summarizing the holdings of various post -Kiobel decisions, the majority fails to recognize the distinction between vicarious liability and direct claims. In both Ben-Haim v. Neeman,
. As indicated elsewhere in this partial dissent, if U.S. incorporation is not sufficient to confer jurisdiction over plaintiffs’ ATS claims, I would at least allow plaintiffs an opportunity to amend their complaint to satisfy the "touch and concern” requirements imposed by the majority.
. The majority cites this and several other district court decisions in an attempt to demonstrate some weight of authority in support of its misreading of Kiobel. Two of these cases, however, are decided on alternate grounds, including the plaintiff's lack of standing, Ahmed-Al-Khalifa v. Al-Assad,
. As recognized by the district court, neither legislative comity nor retrospective adjudicative comity are relevant in this case. See Mujica v. Occidental Petroleum Corp.,