Amicus Curiae Brief — Kiobel v. Royal Dutch Petroleum Co.

No. 10-1491

In the Supreme Court of the Anited States

ESTHER KIOBEL, INDIVIDUALLY AND ON BEHALF OF

HER UATE HUSBAND, DR. BARINEM KIOBEL, ET AL.,

PETITIONERS

Vv.

ROYAL DUTCH PETROLEUM CoO., ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

TONY WEST

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

MELISSA ARBUS SHERRY

Assistant to the Solicitor

HAROLD HONGJU KOH General

Legal Advisor DOUGLAS N. LETTER

Department of State ROBERT M. LOEB

Washington, D.C. 20520 MELISSA N. PATTERSON

Attorneys

CAMERON F. KERRY Department of Justice

General Counsel Washington, D.C. 20530-0001

Department of Commerce SupremeCtBriefs@usdoj.gov

Washington, D.C. 20230 (202) 514-2217

QUESTIONS PRESENTED

1. Whether the issue of corporate liability under the

Alien Tort Statute (ATS), 28 U.S.C. 1350, is a merits

question or a question of subject-matter jurisdiction.

2. Whether a corporation can be held liable in a

federal common law action brought under the ATS.

(I)

Si Cobicbeicur tke ae * Meyinjing

= yea

: 2

TABLE OF CONTENTS

Page

Interest of the United States ................. 0. cece eeeee l

PE sav ataeekheeeheeebdeensenwadsauhwanccee ees l

Summary of the argument ..... ccc cccccccscccccccccccnn 5

BE 6a ci dancekunncenssenedsccadevasevacedeteriss 8

I. The issue of corporate liability in a federal common

law action based on the Alien Tort Statute does not

implicate the district court’s subject-matter

I 40d ndcndncetiras eessnebedeeounwees. 8

Il. Acorporation can be held liable in a federal common

law suit based on the Alien Tort Statute for violating

ID vecaisenndenadaéedediveewadecycs 12

A. Whether a corporation may be held liable in

a suit based on the ATS should be determined

as a matter of federal common law ............. 15

B. Courts may recognize corporate liability as

a matter of federal common law in actions

I Is 666-00 0606 bse undeie ddiecencdins 22

CI, oo. 6.46000606050406 06 6h64bas add OTR 32

TABLE OF AUTHORITIES

Cases:

Argentine Republic v. Amerada Hess Shipping

CO Gy See PE, Sosvcucacucediuedtseuken 22

Aziz v. Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011) .... 11, 13

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398

I b-66906086000004080464000RN sere RR eee eweer 19

Beaston v. Farmers’ Bank of Del., 37 U.S. (12 Pet.)

ED 6: 0:0:6-0.65-06- 0508-0000 6065-008040459040046-005 25

Bell v. Hood, 327 U.S. 678 (1946) .... 02.02.00. 0000005. 6,9

(IIT)

Cases—Continued: Page

Castellanos-Contreras v. Decatur Hotels, LLC,

GER F Be SES Gta Clr. BONG) ... ccc ccccccccccceces 10

Chestnut Hill & Spring House Turnpike Co. v.

Rutter, 4 Serg. & Rawle 6 (Pa. 1818) ............... 26

Cook County v. United States ex rel. Chandler,

SEE tbe Godeausdundesedcedee cesses 25

Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir.

EP ETE TT Ter TT eT TT eT eee passim

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) .... 27

Flomo v. Firestone Natural Rubber Co., 643 F.3d

i he 12, 19, 28

Gray v. Portland Bank, 3 Mass. (2 Tyng) 363 (1807) .... 26

Harmony v. United States (The Malek Adhel),

A Ee POD bcc cisccccencsuecucess 25

Kadic v. Karadzié, 70 F.3d 232 (2d Cir. 1995),

cert. denied, 518 U.S. 1005 (1996) ............... 17, 18

Mayor v. Turner, (1774) 98 Eng. Rep. 980 (K.B.) ....... 26

Miles v. Apex Marine Corp., 498 U.S. 19 (1990) ........ 13

Morrison v. National Australia Bank Ltd.,

ED cc deneaciveianuaes sauce 8,12

Philadelphia, Wilmington, & Balt. R.R. v. Quigley,

Ge UE, Gee Ft En ccc cece ccccccccvcecs 26

Poresky, Ex parte, 290 U.S. 30 (1933) .............0005. 9

Presbyterian Church of Sudan v. Talisman Energy,

Inc., 582 F.3d 244 (2d Cir. 2009), cert. denied,

131 S. Ct. 79 and 131 S. Ct. 122 (2010) ......... 5, 11,13

Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111

Pe eee 14

Cases—Continued: Page

Riddle v. Proprieters of the Locks, 7 Mass. (6 Tyng)

DEE §:+-c56.csGeaGRSKRSRKNOMMAKN SROs e Se eee aK 26

Romero v. Drummond Co., 552 F.3d 1303 (11th Cir.

NE dd wd wkd eRKh ba ben dide chew kieebabecabesas 9,12

Romero v. International Terminal Operating Co.,

EE nb due Ne Giee anes bickeuiea< bees 12

Samantar v. Yousuf, 130 S. Ct. 2278 (2010) ............ 22

Sarei v. Rio Tinto, PLC:

487 F.3d 1193 (9th Cir. 2007), opinion withdrawn

and superceded on reh’g en banc, 550 F.3d 822

pe re eee ene he rere 9

No. 02-56256, 2011 WL 5041927 (9th Cir. Oct. 25,

2011), petition for cert. pending, No. 11-649

EINE Wkecncavhawecadesdaeadeees 12, 20

Shell Petroleum N.V. v. Kiobel, 132 S. Ct. 248 (2011) .... 13

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) .... passim

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774

(D.C. Cir. 1984), cert. denied, 470 U.S. 1003

De panetek sAbSA Koski ns bud hedbentheenes 16, 18, 23

Townsend v. Susquehanna Turnpike Co., 6 Johns. 90

I i 26

United States v. Amedy, 24 U.S. (11 Wheat.) 392

DP iscetecKehecdekuresds eshekekencebick ccs a 25, 26

United States v. Stanley, 483 U.S. 669 (1987) .......... 10

Yamaha Motor Corp., U.S.A. v. Calhoun,

IEEE ecu cout cucudessecanh eedinceas 10

VI

Treaties and statutes: Page

Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment,

adopted Dec. 10, 1984, S. Treaty Doc. No. 20,

100th Cong., 2d Sess. (1988), 1465 U.N.T.S. 85 .... 17, 20

Convention Against Transnational Organized Crime,

Nov. 15, 2000, S. Treaty Doc. No. 16, 108th Cong.,

2d Sess. (2004), 2225 U.N.T.S. 209 ................. 31

Convention on Combating Bribery of Foreign Public

Officials in International Business Transactions,

Dec. 17, 1997, S. Treaty Doc. No. 43, 105th Cong.,

2d Sess. (1998), 37 1.L.M. 1(1998) ................. 31

Convention on the Prevention and Punishment of

the Crime of Genocide, adopted Dec. 9, 1948,

102 Stat. 3045, 78 U.N.T.S. 277 ...............-- 18, 20

Geneva Convention Relative to the Treatment of

Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316,

EY oak cue nenkd deeds kacexdvsavieos 18, 21

Rome Statute of the International Criminal Court,

DU Wig HE Ee Wee OO occ ccccvccccccses 28, 29

Act of Apr. 30, 1790, ch. 9, 1 Stat. 112:

a ul cee aa dh etek wereren te 24

rr rr rs caccchbncucsetataciseves 24

PME bie losses cn esnscveacs chet dstuse 24

Alien Tort Statute, 28 U.S.C. 1350 ............... 1, 9, 22

Foreign Sovereign Immunities Act of 1976,

ee eee aus cole Siedaws doe nie 22

Torture Victim Protection Act of 1991,

, ee HF ) Fk. rere 3, 13

ee I OE 6A beh Shdspas dash ehsaanewexnt 27

Vil

Statutes—Continued: Page

SED veh. 4550 0600455 den caweann 3, 6, 8, 10, 11

Miscellaneous:

Arrest Warrant of 11 April 2000, Dem. Rep. Congo v.

Belgium, 2002 1.C.J.3 (Feb. 14) ..............2005- 19

M. Cherif Bassiouni, Crimes Against Humanity in

International Criminal Law (2d rev. ed. 1999) ...... 31

1 William Blackstone, Commentaries on the Laws

EE 3. co ncadbuecneeeecebeunenckacas 25

Jonathan A. Bush, The Prehistory of Corporations

and Conspiracy in Criminal Law: What Nurem-

berg Really Said, 109 Colum. L. Rev. 1094 (2009) .... 30

William R. Casto, The Federal Courts’ Protective

Jurisdiction Over Torts Committed In Violation

of the Law of Nations, 18 Conn. L. Rev. 467

Ss aah cca seek adh eudakece red ssareunseevas 22, 23

9A William M. Fletcher, Cyclopedia of the Law of

Corporations (2008 rev. ed.) .........cceccescceees 27

Louis Henkin, Foreign Affairs and the United States

Constitution (2d ed. 1996) .........ccccecceccceess 18

H.R. Rep. No. 367, 102d Cong., Ist Sess. Pt. 1 (1991) .... 27

Diarmuid Jeffreys, Hell’s Cartel (2008) ............... 30

21 Journals of the Continental Congress 1774-1789

I, OED vccvedacchcgpsd-cnaneenswans 23

1 Stewart Kyd, A Treatise on the Law of

NID kc cise cndecioescnce ced sense 25

Be Ee CEE oc cdc vc buneneaseacuoudsopes 25

CS PRE: 0.6 66n-cbeucdccvrpeesesseesen 14

PE A A PCED vio vse cvensdsacvsscccnvene 25

VII

Miscellaneous—Continued: Page

Anita Ramasastry & Robert C. Thompson,

Commerce, Crime and Conflict: Legal Remedies

for Private Sector Liability for Grave Breaches

of International Law—A Survey of Sixteen

Countries—Executive Summary (2006),

http://www. fafo.no/pub/rapp/536/536.pdf............ 29

1 Restatement (Third) of Foreign Relations Law

PN Ci chdes chin eaL ea cakicidas ce ukene ke oanaRes 19

S. Rep. No. 249, 102d Cong., Ist Sess. (1991) ........... 27

18 State Dep’t Annual Hum. Rts. Rep. Submitted to

ES SA Gd seeuvsedsVeusseeedsusduusedescs 2

19 State Dep’t Annual Hum. Rts. Rep. Submitted to

RE er ee er ee reer 2

20 State Dep’t Annual Hum. Rts. Rep. Submitted to

ET 6-664 6b ceehasesedannvatesccedesne 2

The Nuremberg Trial (United States v. Goering),

6 F.R.D. 69 (Int’] Military Trib. at Nuremberg

PE x56 kkbnSeRs hs CR RERROREA EES CO CRNE Car eekrnne 30

In the Supreme Court of the Anited States

No. 10-1491

ESTHER KIOBEL, INDIVIDUALLY AND ON BEHALF OF HER

LATE HUSBAND, DR. BARINEM KIOBEL, ET AL.,

PETITIONERS

v.

ROYAL DUTCH PETROLEUM CO., ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case presents the question whether a corpora-

tion can be held liable in a federal common law action

brought under the Alien Tort Statute (ATS), 28 U.S.C.

1350. The United States has an interest in the proper

application of the ATS because such actions can have

implications for the Nation’s foreign and commercial

relations and for the enforcement of international law.

STATEMENT

1. Petitioners are former residents of the Ogoni re-

gion in Nigeria. Respondents are Dutch and British

holding corporations that, through a Nigerian subsid-

(1)

2

iary, were engaged in oil exploration and production in

the Ogoni region.’ In 2002, petitioners filed a putative

class action invoking the ATS. Petitioners alleged that

respondents aided and abetted, or were otherwise

complicit in, various human rights abuses by the Nige-

rian government, including torture, cruel, inhuman, and

degrading treatment, arbitrary arrest and detention,

crimes against humanity, proverty destruction, forced

exile, extrajudicial killings, and violations of the rights

to life, liberty, security, and association. Specifically,

petitioners alleged that Nigerian military and police

forces killed, raped, and detained Ogoni residents, and

destroyed their property, and that respondents provided

logistical and financial support in connection with those

actions. See Pet. App. A21-A23, A169-A173.”

2. Respondents moved to dismiss, arguing, inter

alia, that the operative complaint failed to state a viola-

tion of the law of nations with the specificity required by

Sosa v. Alvarez-Machain, 542 U.S. 692, 731-734 (2004).

Pet. App. B1-B3. The district court granted the motion

in part and denied it in part. Jd. at B1-B23. The court

first held that “where a cause of action for violation of an

international norm is viable under the ATS, claims for

aiding and abetting that violation are viable as well.” /d.

at B12. Concluding that customary international law did

not define with sufficient particularity petitioners’

claims for aiding and abetting property destruction,

' The Nigerian subsidiary was dismissed from the suit for lack of

personal jurisdiction. Pet. App. A170.

* State Department reports document a history of violent repression

of Ogoni residents by Nigerian security forces over the relevant time

period. See 18 State Dep’t Annual Hum. Rts. Rep. to Congress 214

(1993); 19 State Dep’t Annual Hum. Rts. Rep. to Congress 190 (1994);

20 State Dep’t Annual Hum. Rts. Rep. to Congress 197-198, 200 (1995).

3

forced exile, extrajudicial killing, or violation of the

rights to life, liberty, security, and association, the court

dismissed those claims. /d. at B13-B15, B20-B21. The

court, however, declined to dismiss petitioners’ claims of

aiding and abetting arbitrary arrest and detention,

crimes against humanity, and torture. /d. at B16-B20.

Respondents did not raise and the court did not decide

whether a corporation may be held liable in a suit under

the ATS. The court certified its order for interlocutory

appeal under 28 U.S.C. 1292(b). Pet. App. B21-B23.

3. The court of appeals granted both parties’ peti-

tions for interlocutory appeal, and affirmed in part and

reversed in part.

a. Petitioners argued that the district court erred in

dismissing their extrajudicial-killing claim; respondents

argued that the court erred in not dismissing the opera-

tive complaint in its entirety. See Br. in Opp. App. 33a-

34a, 38a n.6. Respondents’ primary contentions were

that “[nJo definite and uniformly agreed-upon norm of

the law of nations” (id. at 49a) prohibited any of respon-

dents’ alleged acts, and that respondents could not be

held liable for the acts of their corporate subsidiary.

With respect to torture and extrajudicial killing, respon-

dents also asserted that the claims were displaced by the

Torture Victim Protection Act of 1991 (TVPA), Pub. L.

No. 102-256, 106 Stat. 73, and that respondents were not

state actors. See Br. in Opp. App. 55a-57a, 60a-65a, 70a,

71a-72a. Finally, in arguing that they could not be held

liable for the acts of their corporate subsidiary, respon-

dents briefly asserted that the practices of international

criminal tribunals “suggest[] that the law of nations does

not attach civil liability to corporations under any cir-

cumstance.” Jd. at 59a-60a; see id. at 138a n.31 (petition-

4

ers’ response on corporate liability); see also id. at 167a

n.1, 169a.

b. The panel majority did not address any of the

grounds relied on by the district court and fully briefed

by the parties. Instead, the court chose to decide one of

several “unresolved issues lurking in [its] ATS juris-

prudence”—whether “the jurisdiction granted by the

ATS extend([s] to civil actions brought against corpora-

tions under the law of nations.” Pet. App. A7. The court

noted that it had “decided ATS cases involving corpora-

tions without addressing the issue of corporate liability,”

but concluded that it was not bound by those decisions

because the issue was one of subject-matter jurisdiction.

Id. at A24-A25.

The court’s analysis “proceed[ed] in two steps.” Pet.

App. A25. The court first considered “which body of law

governs the question” and concluded that “international

law”—specifically, those “norms that are ‘specific, uni-

versal, and obligatory’”—controls. Jd. at Al6, A25-A39.

The court explained that the ATS “leaves the question

of the nature and scope of liability—who is liable for

what—to customary international law,” id. at A18, and

that the “domestic law of the United States,” or of “any

other country,” is “entirely irrelevant,” id. at A9 & n.11.

The court looked “to international law to determine

whether corporate liability for a ‘violation of the law of

nations’ is a norm ‘accepted by the civilized world and

defined with a specificity’ sufficient to provide a basis

for jurisdiction under the ATS.” /d. at A38 (citations

omitted).

Relying primarily on its assessment that “no corpo-

ration has ever been subject to any form of liability un-

der the customary international law of human rights,”

Pet. App. A16, the court of appeals concluded that “cor-

5

porate liability has not attained a discernable, much less

universal, acceptance among nations of the world in

their relations inter se,” id. at A79-A80. Because peti-

tioners’ claims were all asserted against corporations,

the court ordered dismissal of the complaint “for lack of

subject matter jurisdiction.” Jd. at A81.

c. Judge Leval concurred only in the judgment. Pet.

App. A82-A186. He agreed “that the place to look for

answers whether any set of facts constitutes a violation

of international law is to international law,” id. at A137,

but concluded that international law “leaves the manner

of enforcement * * * almost entirely to individual na-

tions,” id. at A87. Judge Leval nevertheless agreed that

“this Complaint must be dismissed,” because petitioners

had not sufficiently alleged, as required by circuit prece-

dent, that respondents aided and abetted customary

international-law violations “with a purpose to bring

about the Nigerian government’s alleged violations.” Jd.

at A90-A91; see zd. at A168 (citing Presbyterian Church

of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259

(2d Cir. 2009), cert. denied, 131 S. Ct. 79 and 131 S. Ct.

122 (2010) (Talisman)).

4. The court of appeals denied panel rehearing. Pet.

App. D3-D10, D24-D25 (Jacobs and Cabranes, JJ., each

concurring in denial); id. at D11-D23 (Leval, J., dissent-

ing). Rehearing en banc was denied by an equally di-

vided court. See id. at C3-C5 (Lynch and Katzmann,

JJ., each dissenting from denial).

SUMMARY OF THE ARGUMENT

I. The court of appeals erred in characterizing the

question whether a corporation can be held liable in a

federal common law action based on the ATS as one of

subject-matter jurisdiction. “[I]t is well settled that the

6

failure to state a proper cause of action calls for a judg-

ment on the merits and not for a dismissal for want of

jurisdiction.” Bell v. Hood, 327 U.S. 678, 682 (1946).

When an alien plaintiff alleges a nonfrivolous claim of a

tort in violation of the law of nations—as petitioners did

here—a district court has subject-matter jurisdiction

under the ATS.

The court of appeals nonetheless had jurisdiction

under 28 U.S.C. 1292(b) to decide the issue of corporate

liability here. Although that issue was neither raised in

nor decided by the district court, it can be regarded as

fairly included within the court’s certified order. As a

prudential matter, the court should not have decided

that issue on appeal. But because this Court has already

granted certiorari and the issue of corporate liability

will now be fully briefed, it would be appropriate for the

Court to decide that question rather than vacate and

remand.

II. The merits question before this Court is narrow:

whether a corporation can be held liable in a federal

common law action based on the ATS. Although there

are a number of other issues in the background of this

case (e.g., aiding-and-abetting liability, extraterritoria!-

ity, etc.), those issues were not decided by the court of

appeals here. This Court therefore should address only

the corporate-liability issue. On that issue, the court of

appeals’ holding is categorical and applies to all suits

under the ATS, regardless of the theory of liability, the

locus of the acts, the involvement of a foreign sovereign,

or the character of the international-law norm at issue.

A. A corporation’s liability in a suit under the ATS

does not depend on the existence of a generally accepted

and well-defined international law norm of corporate

liability for law-of-nations violations. The particular

7

limitation this Court found dispositive in Sosa v.

Alvarez-Machain, 542 U.S. 692 (2004)—that any claim

under the ATS must at least “rest on a norm of interna-

tional character accepted by the civilized world and de-

fined with” sufficient “specificity,” id. at 725—pertains

to the international-law norm itself and not to whether

(or how) that norm should be enforced in a suit under

the ATS. The latter question is a matter to be deter-

mined by federal courts cautiously exercising their “re-

sidual common law discretion.” /d. at 738. International

law informs, but does not control, the exercise of that

discretion.

At the present time, the United States is not aware

of any international-law norm of the sort identified in

Sosa that distinguishes between natural and juridical

persons. Corporations (or agents acting on their be-

half) can violate those norms just as natural persons

can. Whether corporations should be held accountable

for those violations in private tort suits under the ATS

is a question of federal] common law.

B. Courts may recognize corporate liability in ac-

tions under the ATS as a matter of federal common law.

The text and history of the ATS itself provide no basis

for distinguishing between natural and juridical persons.

Corporations have been subject to suit for centuries, and

the concept of corporate liability is a well-settled part of

our “legal culture.” Pet. App. A8. Sosa’s cautionary

admonitions provide no reason to depart from the com-

mon law on this issue.

International law does not counsel otherwise. Al-

though no international tribunal has been created for

the purpose of holding corporations civilly liable for vio-

lations of international law, the same is true for natural

persons. And while international criminal tribunals

8

have, thus far, been limited to the prosecution of natural

persons, that appears to be because of matters unique to

criminal punishment. Notably, several countries that

have incorporated international criminal offenses into

their domestic law apply those offenses to corporations.

ARGUMENT

I. THE ISSUE OF CORPORATE LIABILITY IN A FEDERAL

COMMON LAW ACTION BASED ON THE ALIEN TORT

STATUTE DOES NOT IMPLICATE THE DISTRICT

COURT'S SUBJECT-MATTER JURISDICTION

The court of appeals accepted the parties’ interlocu-

tory appeal under 28 U.S.C. 1292(b), and ordered dis-

missal of petitioners’ suit based on a legal theory (7.e.,

that a corporation cannot be held liable in a common law

action under the ATS) that was neither raised in nor

decided by the district court. In justifying its decision

to do so, the court of appeals characterized the issue as

one of subject-matter jurisdiction. Pet. App. A24-A25,

A81. That was error, and the court should not have ad-

dressed the corporate-liability question for the first time

on interlocutory appeal. Nonetheless, the appellate

court had jurisdiction to decide the question of corporate

liability and, in the current procedural posture, it would

be appropriate for this Court to decide it as well.

A. “Subject-matter jurisdiction * * * refers toa

tribunal’s power to hear a case.” Morrison v. National

Australia Bank Ltd., 130 S. Ct. 2869, 2877 (2010) (inter-

nal quotation marks and citations omitted). The ques-

tion of subject-matter jurisdiction is “quite separate

from the question whether the allegations the plaintiff

makes entitle him to relief.” Jbid. “[I}t is well settled

that the failure to state a proper cause of action calls for

a judgment on the merits and not for a dismissal for

9

want of jurisdiction.” Bell v. Hood, 327 U.S. 678, 682

(1946). Unless the claim is so “plainly unsubstantial”

that it falls outside the statutory grant of jurisdiction,

failure to state a claim does not affect the court’s power

to hear a case. Ex parte Poresky, 290 U.S. 30, 32 (1933).

The ATS grants district courts “original jurisdiction”

over “any civil action by an alien for a tort only, commit-

ted in violation of the law of nations or a treaty of the

United States.” 28 U.S.C. 1350. A district court would

lack ATS jurisdiction over a claim brought by a U.S.

citizen, or a claim that could not colorably constitute a

cognizable tort, or that was premised on an asserted

law-of-nations violation that was plainly insubstantial.

But so long as an alien plaintiff alleges a nonfrivolous

claim of a tort in violation of the law of nations, the dis-

trict court has subject-matter jurisdiction under the

ATS. See Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1201

(9th Cir. 2007), opinion withdrawn and superseded on

reh’g en banc, 550 F.3d 822 (2008) (not addressing juris-

dictional issue); cf. Doe v. Exxon Mobil Corp., 654 F.3d

11, 40 (D.C. Cir. 2011) (declining to decide whether pre-

Sosa circuit law settles jurisdictional question). But see

Romero v. Drummond Co., 552 F.3d 1308, 1315 (11th

Cir. 2008) (treating corporate liability as jurisdictional

under ATS).

The argument that a corporation may be subject to

suit under the ATS is, at the very least, nonfrivolous. A

district court therefore does not lack jurisdiction over an

alien’s otherwise colorable tort claim alleging a law-of-

nations violation simply because the defendant is a cor-

poration.

B. Although the court of appeals erred in reaching

the corporate-liability issue on the premise that it went

to the district court’s subject-matter jurisdiction, it

10

nonetheless appears that the court of appeals had juris-

diction to decide that issue in this case.* A district court

may certify for interlocutory appeal an “order

involv[ing] a controlling question of law as to which

there is substantial ground for difference of opinion,” if

“immediate appeal from the order may materially ad-

vance the ultimate termination of the litigation.”

28 U.S.C. 1292(b). Although the court of appeals “may

not reach beyond the certified order to address other

orders made in the case,” it “may address any issue

fairly included within the certified order because ‘it is

the order that is appealable, and not the controlling

question identified by the district court.’” Yamaha Mo-

tor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996)

(citation omitted); see United States v. Stanley, 483 U.S.

669, 677 (1987).

Here, the district court certified its order granting in

part and denying in part respondents’ motion to dismiss.

Although the order did not address the issue of corpo-

rate liability (and respondents did not raise that issue),

the denial of the motion to dismiss with respect to cer-

tain claims (crimes against humanity, torture, and arbi-

trary arrest and detention) could be understood as im-

plicitly assuming that at least some law-of-nations viola-

tions are actionable against a corporate defendant in a

suit under the ATS. Because the issue of corporate lia-

bility was to this extent “fairly included” within the cer-

tified order, the court of appeals had jurisdiction to de-

cide it. See Castellanos-Contreras v. Decatur Hotels,

LLC, 622 F.3d 393, 398-399 (5th Cir. 2010) (en banc)

(finding jurisdiction under Section 1292(b) to review

* Petitioners argued to the contrary at the petition stage, Pet. 16 n.7;

Reply Br. 5-6, but they do not renew that argument in their merits

brief.

1]

“threshold question” not expressly decided by district

court, but implicit in its order and “material” to the or-

der’s validity). Permitting a court of appeals to con-

sider, in appropriate circumstances, a legal infirmity

fairly included within the certified order, but unnoticed

or unaddressed by the district court, could “materially

advance the ultimate termination of the litigation,”

28 U.S.C. 1292(b).

C. To be sure, a court of appeals generally should

not consider a question not raised in or addressed by the

district court in the context of a Section 1292(b) interloc-

utory appeal. But that is ultimately a matter of pru-

dence, not jurisdiction. As a prudential matter, the

court of appeals should have declined to decide whether

a corporation can be held liable in a suit under the ATS.

The Second Circuit had stayed its hand on that issue in

several previous cases. See Pet. App. A7 n.10, A24-A25

(citing cases); ef. Aziz v. Alcolac, Inc., 658 F.3d 388, 394

n.6 (4th Cir. 2011) (declining to consider corporate-

liability question on appeal from final judgment when

not raised in district court). And it is not evident that

the panel in this case would have reached out to decide

the issue if the court had appreciated that the issue did

not go to the district court’s subject-matter jurisdiction.

At the very least, the panel should not have done so

without full briefing from the parties in this case. See

pp. 3-4, supra.*

‘ The corporate-liability issue was raised in Talisman, supra, which

was argued in the Second Circuit in tandem with this case, Br. in Opp.

7.4. That issue was the subject of considerable discussion in the oral

argument in this case, and was addressed in a post-argument letter

brief submitted in Talisman by petitioners’ counsel (who represented

the plaintiffs in both cases), Br. in Opp. App. 190a-206a.

12

Although the court of appeals erred in characterizing

the issue of corporate liability as one of subject-matter

jurisdiction under the ATS, and in addressing it in the

first instance and without full briefing by the parties,

those errors do not pose any practical obstacle to this

Court’s review of the court of appeals’ extensive sub-

stantive analysis. Because the Court has granted certio-

rari and the issue will now be fully briefed by the par-

ties, it would be appropriate to decide the corporate-

liability issue rather than vacate and remand to the

court of appeals. See Morrison, 130 S. Ct. at 2877 (de-

clining to remand); Romero v. International Terminal

Operating Co., 358 U.S. 354, 359, 381-384 (1959).°

Ii. A CORPORATION CAN BE HELD LIABLE IN A FED-

ERAL COMMON LAW SUIT BASED ON THE ALIEN

TORT STATUTE FOR VIOLATING THE LAW OF NA-

TIONS

The second question presented is whether a corpora-

tion can be held liable in a suit under the ATS for violat-

ing the law of nations. As the court of appeals recog-

nized (Pet. App. A7), a number of other questions, un-

answered by this Court, are implicated by this case

and other ATS cases. These include: whether or when

* This Court may have granted certiorari in part to resolve a

disagreement among the courts of appeals on the issue of corporate

liability in suits based on the ATS. If the decision below were vacated,

however, the present conflict would no longer exist. The Seventh,

Ninth, Eleventh, and D.C. Circuits have all held that corporations can

be liable in tort for a violation of the law of nations under the ATS. Doe,

654 F.3d at 39-57; Flomo v. Firestone Natural Rubber Co., 643 F.3d

1013, 1017-1021 (7th Cir. 2011); Sarei v. Rio Tinto, PLC, No. 02-56256,

2011 WL 5041927, at *6-*7, *19-*20, *24-*25 (9th Cir. Oct. 25, 2011),

petition for cert. pending, No. 11-649 (filed Nov. 23, 2011); Drummond

Co., 552 F.3d at 1315-1316.

13

a cause of action should be recognized for theories of

secondary liability such as aiding and abetting, see Aziz,

658 F.3d at 395-401 (citing cases); whether or when a

cause of action should be recognized under U.S. common

law based on acts occurring in a foreign country, see

Sosa v. Alvarez-Machain, 542 U.S. 692, 727-728 (2004);

and whether or when congressional legislation such as

the Torture Victim Protection Act of 1991 (TVPA),

Pub. L. No. 102-256, 106 Stat. 73, should be taken into

account in determining the scope and content of common

law claims to be recognized under the ATS, cf. Miles

v. Apex Marine Corp., 498 U.S. 19, 23-37 (1990). Those

questions are important, but they were not decided

by the court of appeals in this case and should not be

answered by this Court here.*® And the holding on the

* The court of appeals did not decide any of those issues in this case.

See Pet. App. A7-A8 & n.10 (declining to address extraterritoriality);

Br. in Opp. 30-35, 31 n.22 (suggesting respondents would raise alter-

native grounds for affirmance). Although Judge Leval concurred in the

judgment because he believed the operative complaint should be

dismissed for failure to sufficiently plead aiding-and-abetting liability

under Second Circuit precedent (Pet. App. Al68-A185), the majority

did not decide that question. Aiding-and-abetting liability was, how-

ever, addressed by the Second Circuit in the Talisman case, which was

heard in tandem with this case (see note 4, supra). The United States

filed a brief in Talisman addressing both extraterritoriality and aiding-

and-abetting liability, and stating that its arguments were “equally

applicable to the Kiobel district court’s determination that claims for

aiding and abetting liability are available under the ATS.” U.S. Br. at

5 n.1, Talisman, supra (No. 07-0016).

Respondents filed a conditional cross-petition for certiorari present-

ing the question whether the TVPA has “displaced” certain claims

brought under the ATS (namely, torture, cruel, inhuman, and degrad-

ing treatment, and extrajudicial killing), but this Court denied that peti-

tion. See Shell Petroleum N.V. v. Kiobel, cert. denied, 132 5. Ct. 248

(2011) (No. 11-63). To the extent the Court wishes to address any of

14

issu the court of appeals did decide—that a corporation

may not be held liable—is categorical and applies to all

suits under the ATS, regardless of the theory of liability,

the locus of the acts, the involvement of a foreign sover-

eign, or the character of the international-law norm at

issue.

To isolate the consideration of the court of appeals’

holding from those other issues, and to tie the corporate-

liability issue to the origins of the ATS, consider (for

example) a civil suit brought by a foreign ambassador

against a U.S. corporation for wrongs committed against

the ambassador by the corporation’s employees in the

United States. Cf. Sosa, 542 U.S. at 716-717 (discussing

assault on foreign ambassador to the United States in

Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111 (Pa.

Oyer & Terminer 1784)).’ Or consider a suit against a

corporation based on piracy committed by the corpora-

tion’s employees. Cf. id. at 720,724. Whether a federal

court should recognize a cause of action in such circum-

stances is a question of federal common law that, while

informed by international law, is not controlled by it.

those questions, it should do so in a case where the issues have been

decided by the court of appeals—and only after full briefing. The

United States accordingly will address here only the corporate-liability

question presented in this case.

" Cf. 1 Op. Att’y Gen. 71, 73 (1797) (opining on prosecution of

newspaper editor for libel of Spanish Ambassador and noting that “[a}n

affront to an ambassador is just cause for national displeasure, and, if

offered by an individual citizen, satisfaction is demandable of his

nation”).

15

A. Whether A Corporation May Be Held Liable In A Suit

Based On The ATS Should Be Determined As A Matter

Of Federal Common Law

1. This Court explained in Sosa that, although the

ATS “is in terms only jurisdictional,” and does not cre-

ate a statutory cause of action, “at the time of enact-

ment” it “enabled federal courts to hear claims in a very

limited category defined by the law of nations and recog-

nized at common law.” 542 U.S. at 712. At that time,

the category encompassed “three primary offenses:

violation of safe conducts, infringement of the rights of

ambassadors, and piracy.” /d. at 724; see zd. at 715, 720.

Although the Court concluded that the door had not

been closed “to further independent judicial recognition

of actionable international norms” dictated by “the

present-day law of nations,” id. at 725, 729, it identified

certain cautionary factors to be considered in deciding

whether to recognize such a claim under federal common

law, td. at 725-728. The Court made clear, however, that

“(whatever the ultimate criteria for accepting a cause of

action subject to jurisdiction under [Section] 1350,” one

essential criterion is that “federal courts should not rec-

ognize private claims under federal common law for vio-

lations of any international law norm with less definite

content and acceptance among civilized nations than

[those] historical paradigms.” /d. at 732." Accordingly,

“any claim based on the present-day law of nations”

must at least “rest on a norm of international character

* See Sosa, 542 U.S. at 733 n.21 (“This requirement of clear definition

is not meant to be the only principle limiting the availability of relief in

the federal] courts for violations of customary international law.”); id. at

738 n.30 (noting that the “demanding standard of definition” must first

be met “to raise even the possibility of a private cause of action”).

16

accepted by the civilized world and defined with a speci-

ficity comparable to the features of th[ose] 18th-century

paradigms.” /d. at 725.

2. Contrary to the court of appeals’ conclusion, in

determining whether a federal common law cause of

action should be fashioned, courts are not required to

determine whether “corporate liability for a ‘violation of

the law of nations’ is a norm ‘accepted by the civilized

world and defined with a specificity’ sufficient to provide

a basis for jurisdiction under the ATS.” Pet. App. A38

(citation omitted). In so holding, the court of appeals

confused the threshold limitation identified in Sosa

(which does require violation of an accepted and suffi-

ciently defined substantive international-law norm) with

the question of how to enforce that norm in domestic law

(which does not require an accepted and sufficiently de-

fined practice of international law). That confusion

stems in large part from the court’s misreading of foot-

note 20 in the Sosa opinion.

In footnote 20, the Court explained that “[a) related

consideration” —i.e., a consideration related to “the de-

termination whether a norm is sufficiently definite to

support a cause of action”—“is whether international

law extends the scope of liability for a violation of a

given norm to the perpetrator being sued, if the defen-

dant is a private actor such as a corporation or individ-

ual.” Sosa, 542 U.S. at 732 & n.20. The Court then pro-

ceeded to compare two cases exemplifying that “consid-

eration.” The first was Judge Edwards’ concurring

opinion in Tel-Oren v. Libyan Arab Republic, 726 F.2d

774, 791-795 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003

(1985), in which he found (in this Court’s words) an “in-

sufficient consensus in 1984 that torture by private ac-

tors violates international law.” Sosa, 542 U.S. at 732

17

n.20. The second was Kadic v. KaradZié, 70 F.3d 232,

239-241 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996),

in which the court found (again, in this Court’s words) a

“sufficient consensus in 1995 that genocide by private

actors violates international law.” Sosa, 542 U.S. at 732

n.20. In a concurring opinion, Justice Breyer summa-

rized footnote 20 as requiring that “[t]he norm * * *

extend liability to the type of perpetrator (e.g., a private

actor) the plaintiff seeks to sue.” Jd. at 760.

From Sosa’s footnote 20, it is clear that “if the defen-

dant is a private actor,” Sosa, 542 U.S. at 732 n.20 (em-

phasis added), a court must consider whether private

actors are capable of violating the international-law

norm at issue. The distinction between norms that apply

only to state actors and norms that also apply to non-

state actors is well established in customary interna-

tional law. Pet. App. A143 (explaining that “the distinc-

tion between conduct that does and conduct that does

not violate the law of nations can turn on whether the

conduct is done by or on behalf of a State or by a private

actor independently of a State”).’ For example, the Tor-

ture Convention defines “torture” as certain conduct

done “by or at the instigation or with the consent or ac-

quiescence of a public official or other person acting in

an official capacity.” Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or Pun-

ishment, art. 1, adopted Dec. 10, 1984, S. Treaty Doc.

No. 20, 100th Cong., 2d Sess. 4 (1988), 1465 U.N.T-.S. 85,

113-114 (Torture Convention). In contrast, genocide and

war crimes do not require state involvement. See, e.g.,

* Although the formal distinction in internationa) law is between

norms that require state action and norms that do not, this brief

adheres to the Court’s terminology in Sosa and refers to “state actors”

and “non-state actors” to describe that distinction.

18

Convention on the Prevention and Punishment of the

Crime of Genocide, art. II, adopted Dec. 9, 1948, 102

Stat. 3045, 78 U.N.T.S. 277 (Genocide Convention);

Geneva Convention Relative to the Treatment of Prison-

ers of War, art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 3318, 75

U.N.T.S. 135, 136 (Common Article 3). Because certain

international-law obligations do distinguish between

state actors and non-state actors, to identify an accepted

international-law norm with definite content for Sosa

purposes, a court must conduct a norm-by-norm assess-

ment to determine whether the actor being sued is

within the scope of the identified norm.

The court of appeals, however, read Sosa’s footnote

20 more broadly in two respects. First, it misread the

distinction between state actors and non-state actors—a

distinction well recognized in international law—as a

basis for drawing a distinction between natural and ju-

ridical persons—one that finds no basis in the relevant

norms of international law. In fact, the footnote groups

all private actors together, referring to “a private actor

such as a corporation or individual.” Sosa, 542 U.S. at

732 n.20 (emphasis added). And, notably, the defendant

in Kadic was a natural person, 70 F.3d at 236, whereas

the defendants in Tel-Oren were not, 726 F.2d at 775.

Second, the court of appeals misread footnote 20 to

require not just an international consensus regarding

the content of an international-law norm, but also an

international consensus on how to enforce a violation of

that norm. That reading reflects a misunderstanding of

international law which establishes the substantive stan-

dards of conduct and generally leaves the means of en-

forcing those substantive standards to each state. See

Louis Henkin, Foreign Affairs and the United States

Constitution 245 (2d ed. 1996) (“International law itself

19

* * * does not require any particular reaction to viola-

tions of law.”); Pet. App. A87 (Leval, J., concurring only

in the judgment) (“({I}nternational law says little or

nothing about how those norms should be enforced. It

leaves the manner of enforcement * * * almost en-

tirely to individual nations.”); Flomo v. Firestone Natu-

ral Rubber Co., 643 F.3d 1013, 1020 (7th Cir. 2011)

(same); Doe, 654 F.3d at 41-42 (same). Once it is estab-

lished that the international norm applies to conduct by

an actor, it is largely up to each state to determine for

itself whether and how that norm should be enforced in

its domestic law.

That is not to say that international law is irrelevant

to all questions of enforcement.’ And, as discussed in

Part I1.B.3, infra, international law informs the court’s

exercise of its federal common law authority in deter-

mining whether to recognize a cause of action to remedy

a violation of an international-law norm that otherwise

meets the Sosa threshold—and in deciding what the

contours of that cause of action should be. But that is

a different task from satisfying Sosa’s threshold re-

quirement of demonstrating the existence of an accepted

and well-defined substantive international law norm.

Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,

423 (1964) (“Although it is, of course, true that United

States courts apply international law as part of our own

'° There are, for example, internationally accepted rules on jurisdic-

tion and immunities and, in certain contexts, international law may

require certain minimum procedural standards. See, e.g., 1 Restate-

ment (Third) of Foreign Relations Law §§ 421, 423 (1986) (international!

law on jurisdiction to adjudicate); id. §§ 451-456 (international law on

foreign sovereign immunity); Arrest Warrant of 11 April 2000, Dem.

Rep. Congo v. Belgium, 2002 I.C.J. 3, 20-21 (Feb. 14) (head-of-state

immunity).

20

in appropriate circumstances, the public law of nations

can hardly dictate to a country which is in theory

wronged how to treat that wrong within its domestic

borders.”).

To satisfy Sosa, a plaintiff in an ATS suit must allege

conduct that violates a substantive norm of international

law accepted by civilized nations and defined with the

requisite degree of specificity. To the extent that sub-

stantive norm is defined in part by the identity of the

perpetrator, then the defendant must fall within that

definition. Similarly, if the substantive norm is defined

in part by the identity of the victim or the locus of

events, then conduct committed against a different vic-

tim or in a different locale could not violate that norm

and a suit under the ATS could not stand. See Sarei v.

Rio Tinto, PLC, No. 02-56256, 2011 WL 5041927, at *43

(9th Cir. Oct. 25, 2011) (McKeown, J., concurring in part

and dissenting in part) (“(T]Jhe handful of international

law violations that may give rise to an ATS claim are

often restricted by the identity of the perpetrator, the

identity of the victim, or the locus of events.”), petition

for cert. pending, No. 11-649 (filed Nov. 23, 2011).

3. At the present time, the United States is not

aware of any international-law norm, accepted by civi-

lized nations and defined with the degree of specificity

required by Sosa, that requires, or necessarily contem-

plates, a distinction between natural and juridical) ac-

tors. See, e.g., Torture Convention art. 1 (defining “tor-

ture” to include “any act by which severe pain or suffer-

ing * * * is intentionally inflicted on a person” for cer-

tain reasons, “by or at the instigation of or with the con-

sent or acquiescence of a public official or other person

acting in an official capacity”) (emphasis added); Geno-

cide Convention art. 2 (defining genocide to include “any

21

of the following acts” committed with intent to destroy

a group, without regard to the identity of the perpe-

trator); Common Article 3 (prohibiting “the following

acts,” without regard to the identity of the perpetra-

tor). Both natural persons and corporations can violate

international-law norms that require state action. And

both natural persons and corporations can violate

international-law norms that do not require state action.

The court of appeals examined the question of corporate

liability in the abstract, and therefore did not address

whether any of the particular international-law norms

identified by petitioners (or recognized by the district

court as satisfying Sosa’s “demanding” standard, 542

U.S. at 738 n.30) exclude corporations from their scope.

Because corporations (or agents acting on their behalf)

can violate the types of international-law norms identi-

fied in Sosa to the same extent as natural persons, the

question becomes whether or how corporations should

be held accountable as a matter of federal common law

for violations that are otherwise actionable in private

tort suits for damages under the ATS."

" This is plainly true when the theory of corporate liability is

premised on respondeat superior and the responsible agent is a natural

person. As the D.C. Circuit explained, in those circumstances agency

law simply determines who will be held financially responsible for the

injury inflicted by the agent. See Doe, 654 F.3d at 41,51. But it is also

true for a theory of direct corporate liability, because corporations are

themselves capable of violating norms of customary international law

of the sort described in Sosa—or at least the United States may

permissibly recognize them to be capable of doing so. Although peti-

tioners have not yet identified the precise theory of corporate liability

on which they intend to proceed, the court of appeals erroneously

rejected the concept of corporate liability in a suit under the ATS as a

categorical matter. Cf. Pet. App. A77 n.51 (noting different standards

of corporate liability). To the extent different theories of corporate

22

B. Courts May Recognize Corporate Liability As A Matter

Of Federal Common Law In Actions Under The ATS

This Court has instructed courts to act as “vigilant

doorkeep(ers],” Sosa, 542 U.S. at 729, and to exercise

“great caution” before “adapting the law of nations to

private rights,” zd. at 728. Such restraint, however, does

not justify a categorical exclusion of corporations from

civil liability under the ATS.

1. The text of the ATS does not support the court of

appeals’ categorical bar. To the contrary, whereas the

ATS clearly limits the class of plaintiffs to aliens,

28 U.S.C. 1350, it “does not distinguish among classes

of defendants,” Argentine Republic v. Amerada Hess

Shipping Corp., 488 U.S. 428, 438 (1989)."

The historical context supports the different textual

treatment of ATS plaintiffs and defendants. As ex-

plained in Sosa, the ATS was passed by the First Con-

gress in 1789, after the well-documented inability of the

Continental Congress to provide redress for violations

of treaties and the laws of nations for which the United

States might be held accountable. See 542 U.S. at 715-

717. The Continental Congress had “implored the

States to vindicate rights under the law of nations,” but

only one State acted on that recommendation. /d. at

716. Notably, although that resolution “dealt primarily

with criminal sanctions,” William R. Casto, The Federal

liability could raise distinct questions as to how a court should exercise

its “residual common law discretion,” Sosa, 542 U.S. at 738, that is a

matter better addressed on remand.

” The Foreign Sovereign Immunities Act of 1976, 28 U.S.C. 1330,

would bar a suit against a foreign state, Amerada Hess Shipping Corp.,

488 U.S. at 436-438, and other immunities may apply in suits against

other defendants, e.g., Samantar v. Yousuf, 130 S. Ct. 2278, 2292-2293

(2010).

23

Courts’ Protective Jurisdiction Over Torts Committed

In Violation of the Law of Nations, 18 Conn. L. Rev.

467, 491 (1986) (Casto), the Continental Congress took

the further step of recommending that the States also

make available suits for damages, 21 Journals of the

Continental Congress 1774-1789, at 1136-1137 (Gillard

Hunt ed. 1912) (Continental Congress). And, indeed, the

resolution provided that while it might at times be nec-

essary “to repair out of the public treasury” to compen-

sate for injuries caused by individuals, “the author of

those injuries” should ultimately “compensate the dam-

age out of his private fortune.” Continental Congress

1136.

Events like the “so-called Marbois incident of May

1784”—“in which a French adventurer, De Longchamps,

verbally and physically assaulted the Secretary of the

French [Legation] in Philadelphia”—exposed the inabil-

ity of the national government to redress law-of-nations

violations. Sosa, 542 U.S. at 716-717; Casto 491-492 &

n.138. A “reprise of the Marbois affair,” Sosa, 542 U.S.

at 717, occurred in 1787, during the Constitutional Con-

vention, when a New York City constable entered the

residence of a Dutch diplomat with a warrant for the

arrest of one of his domestic servants. Casto 494. And,

again, the “national government was powerless to act.”

Ibid.

From this history, the Sosa Court concluded that the

First Congress intended the ATS to afford aliens a fed-

eral forum in which to obtain redress for the “relatively

modest set of actions alleging violations of the law of

nations” at the time. 542 U.S. at 720; see id. at 724 (not-

ing importance of “private remedy”); see Tel-Oren, 726

F.2d at 782 (Edwards, J., concurring) (detailing evi-

dence that the intent of the ATS “was to assure aliens

24

access to federal courts to vindicate any incident which,

if mishandled by a state court, might blossom into an

international crisis”). Consistent with the recommenda-

tions of the Continental Congress, the First Congress

both criminalized certain law-of-nations violations (pi-

racy, violation of safe conducts, and infringements on

the rights of ambassadors), see Act of Apr. 30, 1970,

ch. 9, § 8, 1 Stat. 113-114 (1790 Act); id. § 28, 1 Stat. 118,

and in the ATS provided jurisdiction over actions by

aliens seeking civil remedies.

As the D.C. Circuit recently explained, there is no

good “reason to conclude that the First Congress was

supremely concerned with the risk that natural persons

would cause the United States to be drawn into foreign

entanglements, but was content to allow formal legal

associations of individuals, i.e., corporations, to do so.”

Doe, 654 F.3d at 47. Given the apparent intent to pro-

vide compensation to the injured party through a civil

damages remedy in a federal forum (rather than simply

address the international affront through criminal pros-

ecution or diplomatic channels), there is also no good

reason to conclude that the First Congress would have

wanted to allow the suit to proceed only against the po-

tentially judgment-proof individual actor, and to bar

recovery against the company on whose behalf he was

acting. Take, for example, the 1787 incident involving

the Dutch diplomat. If entry were made into his resi-

dence by the agent of a private process service company

for the purpose of serving a summons on the diplomat,

the international affront might equally call for vindica-

tion (and compensation) through a private suit against

that company. Cf. 1790 Act, §§ 25-26, 1 Stat. 117-118

(providing that “any writ or process” that is “sued forth

or prosecuted by any person” against an ambassador or

25

“domestic servant” of an ambassador shall be punished

criminally and would constitute a violation of “the laws

of nations”)."* And later, in opining on a boundary dis-

pute over the diversion of waters from the Rio Grande,

Attorney General Bonaparte stated that citizens of Mex-

ico would have a right of action under the ATS against

the “Irrigation Company.” 26 Op. Att’y Gen. 250, 251

(1907)."*

2. More generally, the proposition that corporations

are “deemed persons” for “civil purposes,” and can be

held civilly liable, has long been recognized as “unques-

tionable.” United States v. Amedy, 24 U.S. (11 Wheat.)

392, 412 (1826); see Beaston v. Farmers’ Bank of Del. , 37

U.S. (12 Pet.) 102, 134 (1838). Corporations are capable

of “suing and being sued.” 1 Stewart Kyd, A Treatise on

the Law of Corporations 13 (1793); see 1 William

Blackstone, Commentaries on the Laws of England 463

(1765) (corporations may “sue or be sued * * * and do

all other acts as natural persons may”); Cook County v.

United States ex rel. Chandler, 538 U.S. 119, 125 (2003)

'® The incident discussed by Attorney General Bradford in his 1795

opinion, in which U.S. citizens had “taken part in the French plunder of

a British slave colony in Sierra Leone,” Sosa, 542 U.S. at 721, provides

another useful analogue. See 1 Op. Att’y. Gen. 57, 59. The Attorney

General there opined that, although the federal government could not

criminally prosecute the Americans, there was “no doubt that the

company or individuals” injured could sue under the ATS. /bid. It

seems unlikely that Congress would have intended federal courts to be

categorically barred from considering a suit against a U.S. corporation

on whose behalf the individuals acted.

* In cases of piracy, legal responsibility was not limited to natural

persons. “The vessel which committed] the aggression [wa]s treated

as the offender,” and was subject to forfeiture. Harmony v. United

States (The Malek Adhel), 43 U.S. (2 How.) 210, 233 (1844).

26

(detailing “common understanding” that corporations

have long had the “capacity to sue and be sued”).”°

As particularly relevant here, corporations were ca-

pable of being sued in tort. This Court has explained

that, “[a]t a very early period, it was decided in Great

Britain, as well as in the United States, that actions

might be maintained against corporations for torts; and

instances may be found, in the judicial annals of both

countries, of suits for torts arising from the acts of their

agents, of nearly every variety.” Philadelphia, Wil-

mington, & Balt. R.R. v. Quigley, 62 U.S. (21 How.) 202,

210-211 (1859); see Chestnut Hill & Spring House Turn-

pike Co. v. Rutter, 4 Serg. & Rawle 6, 17 (Pa. 1818)

(“[F]Jrom the earliest times to the present, corpora-

tions have been held liable for torts.”). In 1774, for ex-

ample, Lord Mansfield’s opinion for the Court of King’s

Bench held that a corporation could be held liable in

damages for failing to repair a creek that its actions had

rendered unnavigable. See Mayor v. Turner, (1774)

98 Eng. Rep. 980. Early American courts followed suit.

See, e.g., Chestnut Hill, 4 Serg. & Rawle at 17; Gray v.

Portland Bank, 3 Mass. (2 Tyng) 363 (1807); Riddle v.

Proprieters of the Locks, 7 Mass. (6 Tyng) 168 (1810);

Townsend v. Susquehanna Turnpike Co., 6 Johns. 90

(N.Y. Sup. Ct. 1809).

Holding corporations liable in tort for violations of

the law of nations of the sort otherwise actionable in a

federal common law action based on the ATS is thus

consistent with the common law backdrop against which

the ATS was enacted and subsequently amended. As

even the Second Circuit recognized, this Nation’s “legal

* See also Amedy, 24 U.S. (11 Wheat.) at 412 (interpreting “person”

in 1801 criminal statute to inclide corporations).

27

culture” has “long” grown “accustomed” to imposing

tort liability on corporations. Pet. App. A8-A9; see Doe,

654 F.3d at 48 (“The general rule of substantive law is

that corporations, like individuals, are liable for their

torts.”) (citation omitted); 9A William M. Fletcher,

Cyclopedia of the Law of Corporations § 4521 (2008 rev.

ed.) (discussing tort suits against corporations). And the

Sosa Court’s cautionary admonitions provide no reason

to depart from the common law on this issue.”

3. International law does not counsel otherwise. As

discussed (see Part II.A, supra), international law does

not dictate a court’s decision whether to recognize, and

how to define, a federal common law cause of action to

enforce a law-of-nations violation of the sort deemed

© In Mohamad v. Palestinian Authority, No. 11-88 (oral argument

scheduled for Feb. 28, 2012), the Court has granted certiorari to decide

whether the TVPA permits actions against organizations as well as

natural persons, and ordered the case to be heard in tandem with this

case. If the Court concludes that acts of torture and extrajudicial kill-

ing can be brought under the TVPA only against natural persons, that

would not support a categorical rejection of corporate liability under the

ATS. The TVPA was enacted to furnish a clear statutory cause of

action for torture and extrajudicial killing under color of law of a foreign

nation, in light of uncertainty concerning application of the ATS as a

result of Judge Bork’s opinion in Tel-Oren, which disagreed with the

Second Circuit’s decision in Filartiga v. Pena-Irala, 630 F.2d 876

(1980). See H.R. Rep. No. 367, 102d Cong., Ist Sess. Pt. 1, at 2-4 (1991);

S. Rep. No. 249, 102d Cong., Ist Sess. 3-5 (1991); see also Sosa, 542 U.S.

at 728, 731. The TVPA is distinct from the ATS in several respects.

Most significantly, whereas the text of the ATS is silent as to the

identity of the defendant, the TVPA confers a private right of action

against an “individual.” § 2(a), 106 Stat. 73. Moreover, whereas the

TVPA itself provides a statutory cause of action only for certain acts

under color of law of a “foreign nation,” ibid., the ATS was enacted to

confer federa)] court jurisdiction and does not specify the law-of-nations

violations that may be actionable.

28

potentially actionable under Sosa. But to the extent

international law does speak to an issue, it should inform

the court’s exercise of its residual common law discre-

tion. Here, nothing in international law counsels in fa-

vor of the Second Circuit’s categorical bar to corporate

liability.

The court of appeals relied heavily on its understand-

ing that “no corporation has ever been subject to any

form of liability under the customary international law

of human rights.” Pet. App. Al6. But, even if correct,

the court of appeals drew the wrong conclusion from

that observation.

First, each international tribunal is speciaily negoti-

ated, and limitations are placed on the jurisdiction of

such tribunals that may be unrelated to the reach of sub-

stantive international law. See, e.g., Rome Statute of

the International Criminal Court, July 17, 1998, 2187

U.N.T.S. 90, art. 10 (Rome Statute) (“Nothing in this

Part shall be interpreted as limiting or prejudicing in

any way existing or developing rules of international law

for purposes other than this Statute.”). Thus, the fact

that no international tribunal has been created for the

purpose of holding corporations civilly liable for viola-

tions of international law does not contribute to the anal-

ysis, because the same is true for natural persons.” Cf.

Pet. App. Al4l (“If the absence of widespread agree-

ment in the world as to civil liability bars imposing lia-

bility on corporations, it bars imposing liability on natu-

ral persons as well.”); Flomo, 643 F.3d at 1019 (“If a

plaintiff had to show that civil liability for such violations

was itself a norm of international law, no claims under

'7 Some international criminal tribunals authorize reparations to

victims. See, e.g., Rome Statute art. 75.

29

the [ATS] could ever be successful, even claims against

individuals.”).

Second, the reason why the jurisdiction of interna-

tional criminal tribunals has thus far been limited to

natural persons (see Pet. App. A51-A54) appears to be

because of certain features unique to criminal punish-

ment. That limitation is not indicative of a general pro-

hibition against holding corporations (as compared to

natural persons) accountable for violations of interna-

tional law. See Pet. App. A165-A166 (Leval, J., concur-

ring only in the judgment) (“[I]nternational tribunals

withhold criminal liability from juridical entities for rea-

sons that have nothing to do with whether they violated

the conduct norms of international law.”); id. at A119-

A127. For example, the Rome Statute, which estab-

lished the International Criminal Court (ICC), was

based on the principle of complementarity. Rome Stat-

ute preamble 1 10. The ICC was to assume criminal

jurisdiction only when national courts were unable (or

unwilling) to genuinely investigate or prosecute certain

international crimes. See Rome Statute art. 17. Be-

cause many foreign states do not criminally prosecute

corporations under their domestic law for any offense,

see Pet. App. A123-A124, extending the ICC’s criminal]

jurisdiction to include corporations would have rendered

complementarity unworkable. Notably, however, sev-

eral countries (including the United Kingdom and the

Netherlands) that have incorporated the Rome Statute’s

three crimes (genocide, crimes against humanity, and

war crimes) into their domestic jurisprudence them-

selves impose criminal liability on corporations and

other legal persons for such offenses. See Anita Rama-

sastry & Robert C. Thompson, Commerce, Crime and

Conflict: Legal Remedies for Private Sector Liability

30

for Grave Breaches of International Law—A Survey of

Sixteen Countries—Executive Summary 13-16, 30

(2006), http://www. fafo.no/pub/rapp/536/536.pdf.

With respect to Nuremberg in particular, while it is

true that no private organization or corporation was

criminally charged or convicted, it is equally true that

nothing in the history of the Nuremberg proceedings

suggests that juridical persons could never be held ac-

countable (through criminal prosecution or otherwise)

for violating international law. See Jonathan A. Bush,

The Prehistory of Corporations and Conspiracy in

Criminal Law: What Nuremberg Really Said, 109

Colum. L. Rev. 1094, 1239 (2009) (noting that corporate

liability was “explored, and was never rejected as legally

unsound,” and that corporations were not prosecuted at

Nuremberg “not because of any legal determination that

it was impermissible under international law”); cf.

Diarmuid Jeffreys, Hell’s Cartel 405-406 (2008) (noting

that German court in subsequent suit, apparently

brought under German law, held that “[tJhe fundamental

principles of equality, justice, and humanity must have

been known to all civilized persons, and the [I.G. Farben

chemical company in its current liquidated form] cannot

evade its responsibility any more than can an individ-

u on) =

'* The International Military Tribunal’s statement that “(c}rimes

against international law are committed by men, not by abstract

entities, and only by punishing individuals who commit such crimes can

the provisions of international law be enforced,” see Pet. App. Al2, A50

(quoting The Nuremberg Trial (U/nited States v. Goering), 6 F.R.D. 69,

110 (Int'l Military Trib. at Nuremberg 1946)), has been taken out of

context. The Tribunal clearly was rejecting the defendant’s argument

that only a state could be held liable for violations of international law;

it was not making any distinction among actors other than the state.

31

Third, international tribunals are not the sole (or

even the primary) means of enforcing international-law

norms. Until the twentieth century, domestic law and

domestic courts were the primary means of implement-

ing customary international law. And holding corpora-

tions accountable if they violate the law of nations is con-

sistent with international law. Today, a number of inter-

national agreements (including some that the United

States has ratified) require states parties to impose

liability on corporations for certain actions. See, e.g.,

Convention Against Transnational Organized Crime,

art. 10(1), Nov. 15, 2000, S. Treaty Doc. No. 16, 108th

Cong., 2d Sess. (2004), 2225 U.N.T.S. 209; Convention on

Combating Bribery of Foreign Public Officials in Inter-

national Business Transactions, art. 2, Dec. 17, 1997,

S. Treaty Doc. No. 43, 105th Cong., 2d Sess. (1998),

37 I.L.M. 1 (1998); see also, e.g., Doe, 654 F.3d at 48-49

& n.35. As the Chairman of the Rome Statute’s Drafting

Committee explained, “all positions now accept in some

form or another the principle that a legal entity, private

or public, can, through its policies or actions, transgress

a norm for which the law, whether national or interna-

tional, provides, at the very least damages * * * and

other remedies such as seizure and forfeiture of assets.”

M. Cherif Bassiouni, Crimes Against Humanity in In-

ternational Criminal Law 379 (2d rev. ed. 1999).

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

HAROLD HONGJU KOH

Legal Advisor

Department of State

CAMERON F. KERRY

General Counsel

Department of Commerce

DECEMBER 2011

DONALD B. VERRILLI, JR.

Solicitor General

TONY WEST

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

MELISSA ARBUS SHERRY

Assistant to the Solicitor

General

DOUGLAS N. LETTER

ROBERT M. LOEB

MELISSA N. PATTERSON

Attorneys