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Supreme Court orders reargument of Kiobel, expanding question to extraterritoriality of Alien Tort Statute

In a somewhat surprising move, the Supreme Court issued an order this morning order the reargument of Kiobel v.. Royal Dutch Petroleum. The order reads as follows:

KIOBEL, ESTHER, ET AL. V. ROYAL DUTCH PETROLEUM, ET AL. This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” The supplemental brief of petitioners is due on or before Thursday, May 3, 2012. The supplemental brief of respondents is due on or before Monday, June 4, 2012. The reply brief is due on or before Friday, June 29, 2012. The time to file amicus curiae briefs is as provided for by Rule 37.3(a). The word limits and cover colors for the briefs should correspond to the provisions of Rule 33.1(g) pertaining to briefs on the merits rather than to the provision pertaining to supplemental briefs.

Lyle Denniston over at SCOTUSblog explains:

The Supreme Court on Monday put over to its next Term a major case on lawsuits against corporations for human rights abuses in foreign countries, and ordered lawyers to come back with an expanded argument on the scope of a 1789 law giving aliens a right to sue in U.S. courts.  The case of Kiobel v. Royal Dutch Petroleum (docket 10-1491) was heard just last Tuesday, and some of the Justices at that time questioned whether the Alien Tort Statute allowed U.S. courts to hear lawsuits for violations of international law on foreign soil.   That is the issue lawyers are to address in new legal briefs due on a schedule that runs through June 29.  The order is here.

The Court gave no reason for its action, but at its private Conference last week, it had examined a new case involving that 223-year-old law that raised directly the question of whether it applied to overseas conduct — that is, the issue of “extraterritoriality.”   That other case was Rio Tinto PLC, et al., v. Sarei, et al. (11-649).   When the orders from Friday’s Conference were released Monday morning, there was no mention of that case.  Four hours later, the new order emerged.   The Justices faced the option of granting the Rio Tinto case and essentially starting over in interpreting the ATS, or expanding the review of the Kiobel case.  They chose the second option, with the effect of putting the case over to the Term starting October 1.

Here is the added question to be argued in new briefs: “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”   The Kiobel parties are to file their brief by May 3, with the oil companies involved due to file their response by June 4.  A reply brief is due by June 29.  Amici also may file added briefs as dictated by Court rules.

It would have been legally possible for the Justices to have gone ahead, this Term, and decided whether corporations could be sued under the ATS for alleged roles in atrocities or other human rights abuses in foreign lands.   A decision against corporate liability would have made it unnecessary to decide the extraterritoriality issue.  But that would have left open whether others could be sued for such foreign wrongdoing under the ATS, and that is a broader question.  The Court has now promised to consider answering that question.

In addition to the extraterritoriality question, the Court also seemed to be promising a ruling on another issue under ATS: can a party that is being sued be challenged not for directly engaging in human rights abuses, but for “aiding and abetting” someone else who did so.  That question appears to be within the part of Monday’s order that called for briefs to address “what circumstances” can be alleged under ATS.   That was another of the questions that had been posed in the Rio Tinto case, and it was a question posed by Justice Antonin Scalia at last week’s oral argument.  A ruling on the “circumstances” that may be the target of an ATS case would also potentially include whether corporations may be targeted, it would appear.

While the question the Court raised for lawyers appeared to focus explicitly on the meaning of the law, it is at least conceivable — if not very likely — that the Court might go so far as to question in the new round whether Congress has the constitutional authority to pass a law authorizing a lawsuit in which both sides are non-citizens and the misconduct occurred entirely overseas.  At last week’s argument, Justice Samuel A. Alito, Jr., asked: “Is there an Article III source of jurisdiction for a lawsuit like this?…What’s the constitutional basis for a lawsuit like this, where an alien is suing an alien?”   The Court, of course, has a long tradition of not deciding constitutional issues if it can decide a case on other grounds, and it may well follow that tradition in this instance.

The new order was another, vivid illustration of the tendency of the “Roberts Court” to take on the broadest kind of controversy in cases brought to it.    The current Term of the Court is quite literally filled with cases of a broad sweep, including the constitutionality of the new federal health care law and the power of states to restrict the activities within their borders of undocumented immigrants.  And, for next Term, the Court had already taken on the abiding question of whether it is unconstitutional for public colleges and universities to use race in selecting their entering classes of students.   In addition, there is a strong chance that the Court next Term could be reexamining its controversial ruling in Citizens United v. Federal Election Commission in a new case from Montana — that is, if it does not dispose of that case by a summary ruling this Term, which is a possibility.

The Court’s order in the Kiobel case made no mention of another case on corporate liability for human rights violations that also was argued last Tuesday — Mohamad v. Palestinian Authority (docket 11-88).  That case, however, involves an entirely different law — the Torture Victim Protection Act of 1992 — and the issue is whether a U.S. citizen can sue a foreign political organization for such atrocities.  The Mohamad case asks the Court whether the word “individual” as the target of a TVPA lawsuit includes a political organization or another non-human entity, including a corporation.   Presumably, the Court can go ahead and decide that issue without waiting for its review of the scope of the Alien Tort Statute.  In fact, at last Tuesday’s argument, there were strong indications that the Court was unmoved by the notion that “individuals” means anything other than human beings.

It is quite unusual for the Court, after briefing and argument on a case, to put it over until its next Term.  But it is not unprecedented: in fact, the Court’s Citizens United ruling on campaign finance was put off to a following Term, and expanded in scope.  The result was a much more sweeping case than the one that reached the Court initially.

Monday’s order almost certainly have the support of at least five Justices, although this is not spelled out in the formal rules of the  Court.   The Court does not reveal how its members vote on such an issue.  It takes the votes of four Justices to hear a case in the first instance, but disposition after that very likely depends upon majority support; the reasoning, if not spelled out in the order, may vary among the Justices in such a majority, however.

Interesting. This was not what I was expecting at all.

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.