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

RECORD — |

AND JUN 1 2 2012

BRIEFS No. 10-1491 OFFICE OF THE CLERK

In The st

Supreme Court of the United

States

ESTHER KIOBEL, et al.,

Petitioners,

Vv.

ROYAL DUTCH PETROLEUM CO., et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF OF PROFESSORS OF CIVIL

PROCEDURE AND FEDERAL COURTS

AS AMICI CURIAE ON REARGUMENT

IN SUPPORT OF PETITIONERS

Theresa M. Traber Allan Ides

Bert Voorhees Counsel of Record

Traber & Voorhees Loyola Law School

128 N. Fair Oaks Ave. Los Angeles

Pasadena, CA 91103 919 Albany Street

(626) 585-9611 Los Angeles, CA 90015

tmt@tvlegal.com (213)736-1464

bv@tvlegal.com idesa@lls.edu

TABLE OF CONTENTS

Page

Ne Be i iccitescceccocdccsoncccccececceseecenes il

INTEREST OF AMICI CURIA. .............000000.0-.00.0...: 1

SUMMARY OF ARGUMENT ......................cccc cc ceeeee es 1

FERS a on ree ea ne Ee ne eT en ET 2

EXISTING DOCTRINES ARE ADEQUATE

TO ADDRESS ANY CONCERNS

RAISED BY TRANSNATIONAL

ALIEN TORT STATUTE CASES .............00.... 2

TET, TILT Mame anne nen Eee 2

A. PERSONAL JURISDICTION ............. 7

B. FOREIGN POLICY CONCERNG...... 11

3. POLITICAL QUESTION

ASR ee 12

2. ACT OF STATE

RE mar 15

3. aaa a 17

C. FORUM NON CONVENIENS .......... 19

D. EXHAUSTION OF DOMESTIC

SR EET Ee Sen 27

a 30

APPENDIX LIST OF AMICI CURIAE. ................. A-1

Page(s)

CASES

Aguinda v. Texaco, Inc.,

908 F.3d 470 (Se Cir. 2008) ......000cccccceesessceeseseee 21

Aldana v. Del Monte Fresh Produce N.A., Inc.,

578 F.3d 1283 (11th Cir. 2009).................. 22, 25

Alperin v. Franciscan Order,

423 Fed. Appx. 678 (9th Cir. 2011) .................. 13

Am. Ins. Ass’n v. Garamendi,

I i ssasnaianianna 13

Asahi Metal Indus. Co. v. Super. Ct.,

I a accented 9g

Baker v. Carr,

I etiam 13

Banco Nacional de Cuba v. Sabbatino,

ey Ce Ee ccscccccncncstcncstashsesssucess 15, 28

Bancoult v. McNamara,

i ciclinaeiilionene 13

Barboza v. Drummond Co.,

No. 06-61527, slip op. (S.D. Fla. July 17,

I ahd aaa aed aaa al i lala ciciateteaie 21

Bigio v. Coca-Cola Company,

448 F.3d 176 (2d Cir. 2006) ....................... 18, 26

-ji-

Blackmer v. United States,

Se Ws Ne QD sinc ceccnncsvescesececoucncsseseeees

Burger King Corp. v. Rudzewicz,

ee i iccicnanicntitnscctmveesnnsesiintesiie

Burnham v. Super. Ct. of Cal.,

a ee CD cr ccneccnecrnnnsensssonstnannsnesiee

Carmichael v. Kellogg, Brown & Root Serv.,

572 F.3d 1271 (11th Cir. 2009)..................

Castille v. Peoples,

ee Be I iccnenccnisewincessconcsiemmnnnies

Clayco Petroleum Corp. v. Occidental

Petroleum Corp.,

712 F.2d 404 (9th Cir. 1983)......................

Corrie v. Caterpillar,

503 F.3d 974 (9th Cir. 2007)...................0

Doe v. Exxon Mobil,

ee I a icccsccetcenscccsencsnseisessesecess

Doe v. Exxon Mobil Corp..,

654 F.3d 11 (D.C. Cir. 2011)......................

Doe v. Israel,

400 F. Supp. 2d 86 (D.D.C. 2005)..............

Doe v. Lui Qi,

349 F. Supp. 2d 1258 (N.D. Cal. 2004)......

El-Shifa Pharm. Indus. v. United States,

607 F.3d 836 (D.C. Cir. 2010).............0..

Ex Parte Royall,

Se ee ee Me ciiiisescceinicchiehinisccssidiidiecabaiiciniesibaaide 30

Exxon Mobil Corp. v. Doe,

Ce 14

Gonzalez-Vera v. Kissinger,

449 F.3d 1260 (D.C. Cir. 2006)......................... 14

Goodyear Dunlop Tires Operations, S.A. v.

Brown,

8. 0 ESE Serene passim

Gulf Oil Corp. v. Gilbert,

ee He I icciccninciitcnidnccnadtnniencennnated 20, 21

Helicopteros Nacionales De Colom. v. Hall,

I, Cu elaeetsipenennnl 8

Hereros v. Deutsche Afrika-Linien Gmbit &

Co.,

232 Fed. Appx. 90 (3d Cir. 2007)...................... 14

Hwang Geum Joo v. Japan,

ae are ee is Ge Ce iitccecctsececnctcetinccnces 14

Intl Shoe Co. v. Washington,

es I iithitactnncinncincsenscnssseniinieions 7, 8,9

Iowa Mut. Ins. Co. v. LaPlante,

ESE NE ae one Te 30

J. McIntyre Mach., Ltd v. Nicastro,

ee ee es Psisisniseninniidnbnacnnndccicienananin 7,10

Japan Whaling Ass'n v. Am. Cetacean Soc.,

I i et 12

Jean v. Dorelien,

rx by Tih Le = = enone 29

Laker Airways Ltd. v. Sabena, Belgian World

Airlines, .

Fae Bee ee Gs GRR BEI oncccncccacenesicvecccnscecces 4

Licea v. Curacao Drydock Co.,

537 F. Supp. 2d 1270 (S.D. Fla. 2008).............. 23

Linder v. Portocarrero,

O63 F.Ba SSS (1 Utes Civ. 1GBR).....0.ccccccsccccccoscesecs. 4

In re Maxwell Commc’n Corp.,

93 F.3d 1036 (2d Cir.1996) .....................006. 17,19

McCarthy v. Madigan,

SR TD NOD RAT een r ne 30

Oetjen v. Cent. Leather Co.,

I alas 13

Perkins v. Benguet Consol. Mining Co.,

ee: SI I iiccceeiencescaainienapideibeiiiiontasenitoasaiactnnn 4

Piper Aircraft Co. v. Reyno,

ey SI aicinstesiniccninccetincdinninaienniiin 21, 24

Presbyterian Church of Sudan v. Talisman

Energy, Inc.,

244 F. Supp. 2d 289 (S.D.N.Y. 2008).......... 23, 24

Quackenbush v. Allstate Ins. Co.,

gk ST ITI ns aa TNR BP 20

Rasoulzadeh v. Associated Press,

574 F. Supp. 854 (S.D.N.Y. 1983)..................... 22

-V-

Republic of Austria v. Altmann,

ESTE ae Or er 4

Sarei v. Rio Tinto plc,

bP Ff of. fe | nenres 29

Sarei v. Rio Tinto,

487 F.3d 1198 (Btia Cir. 2007)......cccccsccccsesccesccs. 14

Sarei v. Rio Tinto,

650 F. Supp. 2d 1004 (C.D. Cal. 2009) ............ 29

Sarei v. Rio Tinto,

671 F.3d 736 (9th Cir. 2011).................cc00 14, 29

Schneider v. Kissinger,

GEE Fe Be re CR, BD coccciceccsecccceccscsecses 14

Shaffer v. Heitner,

I 7

Sinochem Int'l Co., Ltd. v. Malaysia Int

Shipping Corp.,

RR Ane eae a 20

Skiriotes v. State of Florida,

ES RE EE Te Le ne a 4

Societe Nationale Industrielle Aerospatiale v.

United States Dist. Court for the S. Dist. of

lowa,

I iii cst 17

Sosa v. Alvarez-Machain,

ERE AE Re ee aoe 5, 12,16

-Vi-

Turedi v. Coca Cola Co.,

343 Fed. Appx. 623 (2d Cir. 2009)................... 21

Underhill v. Hernandez,

Ee ek Be i acicticntiinonitiedlacnsnpeninstisiinusiinain 15

Ungaro-Benages v. Dresdner Bank AG,

379 F.3d 1227 (11th Cir. 2004)......................... 18

United States v. First Nat City Bank,

Se TE TOD ccccsitieiencéeiucicdsaaneaninaaanae y

United States v. Pink,

Re Bais Bee CD vcicicinsicttenscivtccsnsnienectaineatniaiaaaan 13

Verlinden B.V. v. Cent. Bank of Nigeria,

SE es Se i iicerntserierinstaiectiaiciiatsnhaiaunindieieaiiaiaabioeaiaa 4

Whiteman v. Republic of Austria,

O31 FBG OT GIG Cae. BD ccececccccvcsccccssccssevesceses 14

W.S. Kirkpatrick & Co. v. Envtl. Tectonics

Corp, 493 U.S. 400, 406 (1991).............. —'

Zivotofsky v. Clinton,

f Bs Bf eer :2,13

STATUTES

SD Wee BS BO tncneimniiidemaane passim

OTHER AUTHORITIES

Developments in the Law---Extraterritoriality,

124 Harv. L. Rev. 1226, 1245 (2011)................ 30

Mavrommatis Palestine Concessions,

-Vii-

P.C.I.J. Series A, No. 2, at 12 (1924) ............00..... 28

Michael D. Ramsey, Escaping “International

Comity, ”83 Iowa L. Rev. 893, 897 (1998) ........ 17

Brief for the United States as Amicus Curiae,

Doe v. Exxon Mobil, No. 07-81, 2007 U.S.

Briefs 81, 8-9 & 19 (May 16, 2008) .................. 14

Brief of the Federal Republic of Germany as

Amicus Curiae in Support of Respondents,

Kiobel v. Royal Dutch Petroleum Co., No.

10-1491, 2012 WL 379578 at 13 (Feb. 2,

EE passim

Brief of the Governments of Australia and the

United Kingdom of Great Britain and

Northern Ireland as Amici Curiae in

Support of the Petitioners on Certain

Questions Raised in the Petition for

Certiorari, Rio Tinto PLC v. Alexis

Holyweek Sarei, No. 11-649, 2011 U.S.

Briefs 649; 2011 WL 6934726 (Dec. 28,

i enssmhonnnaens 11, 27

Brief of Amicus Curiae the European

Commission in Support of Neither Party,

Sosa v. Alvarez-Machain, No. 03-339, 2004

WL 177036 at *24 (U.S.) (Appellate Brief)

a ceumpsnenenoonons 27

I linemiinnenee 1

Restatement (Third) of Foreign Relations Law

of the United States § 703 cmt. d (1987).... 28, 29

-Vili-

International Covenant on Civil and Political

Rights, art. 41(1)(c), opened for signature

Dec. 16, 1966, 999 U.N.T.S. 171 ..........00..000000.. 28

Organization of American States, American

Convention on Human Rights, art. 46, Nov.

Mm B.' £ k 2. 2 ee 28

European Convention for the Protection of

Human Rights and Fundamental

Freedoms, art. 35(1), Nov. 4, 1950, 213

RINE Ret eons eS eer 28

INTEREST OF AMICI CURIAE

Amici curiae respectfully submit this brief in

support of Petitioners, pursuant to Supreme Court

Rule 37.! Amici (listed in the Appendix) are

professors of civil procedure and federal courts who

have an interest in federal litigation and the proper

application of the Alien Tort Statute (“ATS”), 28

U.S.C. § 1350.

SUMMARY OF ARGUMENT

Federal and State courts routinely hear cases

relating to injuries suffered in other jurisdictions,

including, in particular, cases litigated pursuant to

the Alien Tort Statute, 28 U.S.C. § 1350. Any of

these cases may raise concerns about the proper

assertion of personal jurisdiction, international

comity, or the inconvenience of a U.S. forum. These

issues, however, can and should be addressed

without imposing territorial restrictions on the reach

of the ATS. Existing rules of personal jurisdiction,

along with prudential doctrines such as the political

question doctrine and forum non conveniens, directly

address the concerns raised by transnational

litigation. Proper application of these doctrines will

weed out problematic cases, without denying a forum

to the cases that are properly litigated in U.S. courts.

1 Pursuant to Rule 37.6, counsel for amici states that no

counsel for a party authored this brief in whole or in part, and

that no person other than amici or their counsel made a

monetary contribution to the preparation or submission of this

brief. Petitioners and respondent have filed a letter of consent

with the Clerk of the Court.

AR NT

EQUATE

ED BY

TRANSNATI TATUTE

CASES

INTRODUCTION

The Alien Tort Statute, 28 U.S.C. § 1350

(“ATS”), has historically been interpreted to apply to

conduct outside the United States. There is no need

to limit the reach of the statute in order to respond to

the constitutional or prudential issues that may arise

when U.S. courts assert jurisdiction over ATS claims

arising in the territory of foreign sovereigns.

Extraterritorial litigation may raise concerns

about personal jurisdiction, foreign affairs, or

efficiency. If the defendants and the claims have

insufficient contacts with the United States, a U.S.

assertion of jurisdiction will violate the Due Process

Clause of the Constitution. Such litigation may also

trespass on the foreign affairs powers of the U.S.

Executive Branch. Foreign states may view

adjudication of these claims as an interference with

their domestic sovereignty. Finally, litigation of

claims in the United States may be inefficient, if the

facts and the parties have no connection to the

United States.

Amici submit this brief to make only one

narrow point: each of these concerns is properly

addressed through case-by-case application of a

series of existing doctrines that allow the courts to

dismiss claims at an early stage if litigation would

constitute an excessive interference with U.S. foreign

policy or with foreign sovereignty, or if the parties

and the claims have insufficient ties to the United

States. To the extent that these concerns underlie

the question posed by this Court for reargument,?

they can be resolved through application of these

well-established doctrines and do not require that

the Court develop new doctrines or otherwise limit

the reach of the ATS.

By contrast, a blanket rejection of all ATS

claims arising in the territory of a foreign state

would be overbroad. First, it would reject claims

against U.S. defendants, even though U.S. law and

international law clearly permit states to assert

jurisdiction over their own citizens and residents for

claims arising in another state. If the United States

does not permit litigation against its own citizens

with respect to their tortious conduct overseas, such

conduct will often escape any review. Second, a

rejection of ATS claims arising in foreign states

would unnecessarily deny a forum for cases that do

not raise foreign policy concerns and in which there

is no alternative forum in which to seek remedies.

When U.S. courts have personal jurisdiction over a

defendant; when neither the U.S. nor any foreign

government objects; and when logistical obstacles

can be overcome and there is no alternative forum,

9°

2 This Court’s Order requesting supplemental! briefing

asked whether 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.”

there is no reason to deny a hearing to a plaintiff

alleging egregious harm.

Pre-existing doctrines directly address the

potential problems triggered by extraterritorial ATS

cases. These doctrines were designed to respond

directly to the problems triggered by litigation

arising in the territory of a foreign sovereign. U.S.

courts routinely assert jurisdiction over claims

arising out of events in a foreign state if the courts

have personal jurisdiction over the defendants. See

Burnham v. Super. Ct. of Cal., 495 U.S. 604, 611

(1990), quoting Justice Story, Commentaries on the

Conflict of Laws §§ 554, 543 (1846) (“[Bly the

common law[,] personal actions, being transitory,

may be brought in any place, where the party

defendant may be found”). Our legal system

addresses the difficulties presented by some of these

extraterritorial claims through case-by-case

application of principles that protect against

interference with U.S. foreign policy or foreign

3 Since the Founding, our courts have heard cases, in

particular tort claims, relating to injuries suffered in other

jurisdictions. See, e.g., Republic of Austria v. Altmann, 541 U.S.

677, 685-86 & n.4 (2004); Verlinden B.V. v. Cent. Bank of

Nigeria, 461 U.S. 480, 491 (1983); Perkins v. Benguet Consol.

Mining Co., 342 U.S. 437 (1952); Linder v. Portocarrero, 963

F.2d 332, 336 (11th Cir. 1992); see also Laker Airways Ltd. v.

Sabena, Belgian World Airlines, 731 F.2d 909, 926 (D.C. Cir.

1984) (regulating activities of businesses incorporated within

state is “one of the oldest and most established examples of

prescriptive jurisdiction”). Moreover, there is no dispute that

the United States has jurisdiction to regulate the conduct of its

own citizens and residents, wherever located. See, e.g.,

Skiriotes v. State of Florida, 313 U.S. 69, 73 (1941) (United

States not debarred from governing conduct of its own citizens

“upon the high seas or even in foreign countries”); Blackmer v.

United States, 284 U.S. 421 (1932).

sovereignty while also furthering efficiency and

convenience.

The relevant doctrines include personal

jurisdiction, political question, act of state, comity,

forum non conveniens, and exhaustion of domestic

remedies. As a group, these principles are effective

and generally non-controversial: cases that trigger

genuine foreign policy problems, or in which there is

no nexus to the United States and an alternative

forum in the place where the damage was inflicted,

can be dismissed at an early stage of litigation.

Sosa v. Alvarez-Machain, 542 U.S. 692, 733

(2004), recognized that application of these limiting

doctrines would weed out some cases that triggered

ATS jurisdiction. This Court in Sosa articulated a

narrow standard for defining ATS claims, id. at 732,

and then emphasized that the “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, though

it disposes of this action.” Jd. at 733 n.21. Sosa

proceeded to discuss, as examples, both the

exhaustion of domestic remedies and the possibility

of “case-specific deference to the political branches.”

Td.

In earlier amicus briefs to this Court, foreign

states emphasized their concern about litigation in

U.S. courts over “torts committed on foreign soil by

foreign tortfeasors that injured foreign victims and

have no nexus to the United States.” Br. of the

Federal Republic of Germany as Amicus Curiae in

Support of Respondents, Kiobel v. Royal Dutch

Petroleum Co., No. 10-1491, (reargument scheduled),

2012 WL 379578 at 13 (Feb. 2, 2012) (“F.R.G. Br.

Amicus Curiae”). Note first that the foreign states

object to U.S. assertions of jurisdiction over foreign

tortfeasors, not over U.S. citizens and residents. If

those foreign defendants have no minimum contacts

with the United States, a claim will be dismissed for

lack of personal jurisdiction. If the case triggers

substantial foreign policy concerns, one of a group of

prudential] doctrines will point to dismissal. And, if

the case itself has no nexus with the United States

and the courts of a foreign state provide a more

convenient and adequate alternative forum, the case

may be dismissed on a forum non conveniens motion.

As discussed below, our courts entertain transitory

tort cases only where there is personal jurisdiction

over the defendant, and dismiss such cases if foreign

policy concerns so require or if there is an adequate

alternative forum and the balance of public and

private interests favors litigation in another state.

As with any area of the law, the difficulty

arises in the application of the rules at the margins,

to difficult cases where the litigants vociferously

object to a court’s decision to grant or deny a motion

to dismiss the U.S. litigation. But the presence of a

handful of hotly contested disputes is no reason to

distort basic rules of U.S. jurisdiction. Most ATS

cases are not controversial, because they involve

local defendants, because neither the U.S.

government nor a foreign government has objected to

the litigation, or because there is no alternative

forum available to litigate the claims. Most cases

involving a foreign defendant and an objection from a

foreign government or an adequate alternative forum

are dismissed. That is, these well-developed

doctrines effectively manage the problems triggered

by application of ATS claims arising in foreign

states. As a result, there is no need to respond to

these concerns by barring ATS jurisdiction over all

such claims. To the extent that these doctrines have

produced a small number of disputed results, the

solution lies in proper application of the traditional

doctrines, not in a major overhaul of the ATS

jurisprudence.

In this brief, amici analyze each of these

doctrines to demonstrate that they effectively weed

out cases that do not belong in U.S. courts. Amici

take no position on the application of these doctrines

to the facts of this case, and no position on other

issues pending in this case. We submit this brief only

to urge the Court to rely on these pre-existing

principles to address concerns about application of

the ATS to cases arising in foreign states.

A. PERSONAL JURISDICTION

The Due Process Clause of the Constitution

requires that a defendant have sufficient connection

to an individual state or to the United States as a

whole before a court may exercise jurisdiction over

that defendant. Goodyear Dunlop Tires Operations,

S.A. v. Brown, 131 S. Ct. 2846 (2011); J. McIntyre

Mach., Ltd v. Nicastro, 131 S. Ct. 2780 (2011); Int7

Shoe Co. v. Washington, 326 U.S. 310 (1945).

Furthermore, the exercise of jurisdiction must be

reasonable. Shaffer v. Heitner,433 U.S. 186,

215 (1977); Intl Shoe, 326 U.S. at 316. The

requirement that a court must satisfy itself that each

defendant is properly subject to personal jurisdiction

can do much of the work necessary to ensure that

only cases with a sufficient connection to the United

States are heard in our courts and to minimize

foreign affairs friction.‘

This Court has described two distinct

categories of personal jurisdiction: specific

jurisdiction® and general jurisdiction. “[FJor an

individual, the paradigmatic forum for the exercise of

general jurisdiction is the individual’s domicile; for a

corporation it is an equivalent place, one in which

the corporation is fairly regarded as at home.”

Goodyear, 131 S. Ct. 2846, 2853-54; see also id. at

2851. For both specific and general jurisdiction, a

district court must determine that a defendant had

minimum contacts with a state or the United States

sufficient to satisfy “traditional notions of fair play

4 Amici understand that the Defendant did not challenge

personal jurisdiction over Defendant Royal Dutch Petroleum in

this case. Petitioners’ Supplemental Opening Brief, Kiobel v.

Royal Dutch Petroleum Co., No. 10-1491, at 4 (June 6, 2012).

Amici take no position on whether the court would have

properly asserted personal jurisdiction if Defendant had not

waived its personal jurisdiction challenge.

Specific jurisdiction is limited to cases in which a

defendant has “purposefully directed’ his activities at residents

of the forum and the litigation results from alleged injuries that

‘arise out of or relate to’ those activities.” Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 472 (1985) (internal citations

omitted); see also Goodyear, 131 S. Ct. at 2853.

6 General jurisdiction requires a defendant to have the

kind of continuous and systematic general business contacts

that justify suit on causes of action distinct from those

activities. Goodyear, 131 S. Ct. at 2853; Helicopteros Nacionales

De Colom. v. Hall, 466 U.S. 408,416 (1984). Even continuous

activity “of some sorts” is not enough to support general

jurisdiction. Goodyear, 131 S. Ct. at 2856 (citing Int? Shoe, 326

U.S. at 318).

and substantial justice.” Int? Shoe, 326 U.S. at 316.

In Asahi Metal Indus. Co. v. Super. Ct., 480 U.S. 102,

115 (1987), a seven member majority of this Court

explained that a court’s inquiry into the

reasonableness of asserting jurisdiction should take

into account “[t}]he procedural and substantive

interests of other nations” and “the Federal

Government’s interest in its foreign relations

policies.” The Court cautioned that those interests

are best served by “an unwillingness to find the

serious burdens on an alien defendant outweighed by

minimal interests on the part of the plaintiff or

forum State” and that “[g]reat care” should be

exercised “when extending our notions of personal

jurisdiction into the international field.” Jd. (citing

United States v. First Natl City Bank, 379 U.S. 378,

404 (1965) (Harlan, J., dissenting).

Many of the complaints about hypothetical

ATS cases raised by foreign States, including the

Federal Republic of Germany and the Governments

of the United Kingdom of Great Britain and

Northern Ireland and the Kingdom of the

Netherlands, address fact settings in which it is

likely personal jurisdiction in the United States does

not exist: “torts committed on foreign soil by foreign

tortfeasors that injured foreign victims and have no

nexus to the United States.” F.R.G. Br. Amicus

Curiae at 13. Where a defendant is not a U.S. citizen

and has insufficient other contacts with the United

States, the assertion of jurisdiction would be

unconstitutional, and a motion to dismiss for lack of

personal jurisdiction will dispose of the case

expeditiously.’

Most ATS claims, however, involve defendants

who are citizens or residents of the United States.

Personal jurisdiction in most cases is based on the

physical presence of an individual defendant. The

foreign states that have submitted briefs in ATS

cases all agree there is no bar under international

law to a State regulating conduct of its own citizens

or residents, even if their conduct takes place

elsewhere. F.R.G. Br. Amicus Curiae at 12; Brief of

the Governments of the United Kingdom of Great

Britain and Northern Ireland and The Kingdom of

the Netherlands as Amici Curiae in Support of the

Respondents, Kiobel v. Royal Dutch Petroleum Co.,

No. 10-1491 (reargument scheduled), 2012 WL

405480 at 30 (recognizing exercise of prescriptive

jurisdiction in relation to conduct of own citizens,

wherever located); see also Motion for Leave to File

Brief as Amici Curiae and Brief of the Governments

7 Cases in which personal jurisdiction over an individual

defendant is based on personal service while physically present

in the forum case, see Burnham, 495 U.S. 604 (finding personal

jurisdiction based on such “tag” or “transient” jurisdiction to be

constitutional), can be litigated in a U.S. forum that has no

other connections to the case. Tag jurisdiction, however, does

not apply to a foreign corporation. Any assertion of personal

jurisdiction over a corporation must satisfy the “at home”

standard of general jurisdiction, Goodyear, 131 S. Ct. at 2853-

54, and/or meet the relatedness standards of specific

jurisdiction, Nicastro, 131 S. Ct. at 2787-88. Moreover, to the

extent that tag jurisdiction may allow a court to exercise

personal jurisdiction over a foreign, non-resident defendant, the

doctrine of forum non conveniens provides an effective remedy

to redress any abuse of this jurisdictional device. See infra,

pages 20-27.

10

of Australia and the United Kingdom of Great

Britain and Northern Ireland as Amici Curiae in

Support of the Petitioners on Certain Questions in

their Petition for a Writ of Certiorari at 5 & 14, Rio

Tinto v. Sarei, No. 11-649 (cert. pending), 2011 WL

6934726. For example, the Federal Republic of

Germany explained that its legal system “allows

plaintiffs to pursue violations of customary

international law by German tortfeasors in German

courts. .. . German nationals and nationals of other

countries who are the victims of such torts are

entitled to file an action.” F.R.G. Br. Amicus Curiae

at 11. The brief concludes: “[I]t is certainly

reasonable and appropriate to require a victim of a

tort committed in a third country by a German

tortfeasor to go to Germany and utilize the legal

system of the Federal Republic of Germany to seek

legal satisfaction.” Id. at 13.8

The standard rules of personal jurisdiction,

properly applied as in other civil litigation, will weed

out the cases that these foreign governments find

most troublesome, those in which neither the parties

nor the claims have any connection with the United

States.

B. FOREIGN POLICY CONCERNS

The federal courts can rely on several pre-

existing doctrines to respond to the concern that ATS

claims interfere with the foreign affairs powers of the

Executive Branch or with the domestic sovereignty of

8 In Goodyear, this Court observed that France permitted

the exercise of jurisdiction based on a plaintiffs French

nationality. Goodyear, 131 S. Ct at 2857 n.5.

1]

foreign states, including the political question

doctrine, the act of state doctrine, and comity.

1. POLITICAL QUESTION DOCTRINE

The political question doctrine “speaks to an

amalgam of circumstances” in which a court may

decline to adjudicate a particular suit. Zivotofsky v.

Clinton, 132 S. Ct. 1421, 1431 (2012) (Sotomayor, J.,

concurring). Courts undertake a _ case-by-case

analysis to determine whether maintenance of a suit

“accords appropriate respect to the other branches’

exercise of their own constitutional powers.” Id.; see

also Sosa v. Alvarez Machain, 542 U.S. at 733 n.21

(suggesting application of “case-specific deference to

the political branches” in the appropriate case);

Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S.

221, 230 (1986) (political question doctrine “excludes

from judicial review those controversies which

revolve around policy choices and _ value

determinations constitutionally committed for

resolution to the halls of Congress or the confines of

the Executive Branch”).?

9 Cases may be dismissed on political question grounds

where they involve:

[A] textually demonstrable constitutional commitment

of the issue to a coordinate political department; or a

lack of judicially discoverable and manageable

standards for resolving it; or the impossibility of

deciding without an initial policy determination of a

kind clearly for mnonjudicial discretion; or the

impossibility of a court’s undertaking independent

resolution without expressing lack of the respect due

coordinate branches of government; or an unusual need

for unquestioning adherence to a political decision

already made; or the potentiality of embarrassment

12

Foremost among the cases found to pose a

political question are those in the sphere of foreign

relations. Zivotofsky, 132 S. Ct. at 1438 (Breyer, J.,

dissenting); Baker, 369 U.S. 186, 211 (1962) (citing

cases); see also Am. Ins. Ass’n v. Garamendi, 539

U.S. 396 (2003); United States v. Pink, 315 U.S. 2038,

242 (1942) (“In our dealings with the outside world,

the United States speaks with one voice and acts as

one... .”); Oetjen v. Cent. Leather Co., 246 U.S. 297,

302 (1918) (“[t]he conduct of the foreign relations of

our government is committed by the Constitution to

the Executive and Legislative -- ‘the political’ --

Departments of the Government”). For example, the

Ninth Circuit easily and unanimously affirmed the

district court’s dismissal of ATS claims against

Caterpillar Inc., for selling bulldozers to the Israeli

Defense Forces. Corrie v. Caterpillar, 503 F.3d 974

(9th Cir. 2007). The District of Columbia Circuit

similarly affirmed the lower court decision to

dispense with claims by villagers against the United

States and individual defendants arising out of their

forcible removal from their homes in the Indian

Ocean in order to construct a military base.

Bancoult v. McNamara, 445 F.3d 427 (2006). See

also Alperin v. Franciscan Order, 423 Fed. Appx. 678

(9th Cir. 2011) (dismissal on political question

grounds); El-Shifa Pharm. Indus. v. United States,

607 F.3d 836 (D.C. Cir. 2010), cert. denied, 131 S. Ct.

997 (2011) (same); Carmichael v. Kellogg, Brown &

Root Serv., 572 F.3d 1271, (11th Cir. 2009) (same);

from multifarious pronouncements by various

departments on one question.

Baker v. Carr, 369 U.S. 186, 217 (1962).

13

Hereros v. Deutsche Afrika-Linien Gmbit & Co., 232

Fed. Appx. 90 (3d Cir. 2007) (same); Gonzalez-Vera v.

Kissinger, 449 F.3d 1260 (D.C. Cir. 2006) (same);

Hwang Geum Joo v. Japan, 413 F.3d 45 (D.C. Cir.

2005) (same); Whiteman v. Republic of Austria, 431

F.3d 57 (2d Cir. 2005) (same); Schneider v. Kissinger,

412 F.3d 190 (D.C. Cir. 2005) (same).

In other cases, courts have declined to dismiss

a case on political question grounds, but in some of

those cases the defendants have exaggerated the

foreign policy effects or overstated the State

Department’s position. See, e.g., Doe v. Exxon Mobil,

473 F.3d 345, 354 (2007) (Sentelle, J.) (“We disagree

with Exxon’s contention that there is a conflict

between the views of the State Department and

those of the district court.”); see also Brief for the

United States as Amicus Curiae, No. 07-81, 2007

U.S. Briefs 81, 8-9 & 19 (May 16, 2008), cert. denied,

Exxon Mobil Corp. v. Doe, 554 U.S. 909 (2008)

(observing that the “court of appeals reasonably

regarded” the appeal as “based on an assertion by

private defendants, not by the Executive, that the

litigation itself would have adverse consequences for

the Nation’s foreign policy interests” and noting that

the opinion indicates that if the Court “had believed

the circumstances of this case to be as petitioners

paint them, petitioners would have been granted the

relief they seek”); cf. Sarei v. Rio Tinto, 487 F.3d

1193, 1206-07 (9th Cir. 2007) (reversed on other

grounds) (given “guarded nature” of U.S. Statement

of Interest, “[w]hen we take the SOI into

consideration and give it ‘serious weight,’ we still

conclude that a political question is not presented”);

see also Sarei v. Rio Tinto, 671 F.2d 736, 756 (9th

Cir. 2011) (en banc) (U.S. government “has told this

14

court in its briefs that it no longer believes foreign

policy concerns are material in this case and has

expressly stated that it is not ‘seeking dismissal of

the litigation based on purely case-specific foreign

policy concerns.’ Thus, there is no longer any basis

for a fear of interference by the courts in the conduct

of foreign affairs.”).

2. ACT OF STATE DOCTRINE

The basis of the act of state doctrine is the

principle that “[e]very sovereign State is bound to

respect the independence of every other sovereign

State, and the courts of one country will not sit in

judgment on the acts of the government of another

done within its own territory.” Underhill ov.

Hernandez, 168 U.S. 250, 252 (1897). The doctrine is

applicable “when a court must decide -- that is, when

the outcome of the case turns upon -- the effect of

official action by a foreign sovereign.” WS.

Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S.

400, 406 (1991). Thus, when an ATS case challenges

the “official action” of a foreign sovereign, the act of

state doctrine may support dismissal of the claims.

According to Banco Nacional de Cuba v.

Sabbatino, 376 U.S. 398, 427-28 (1964), a court

considering the applicability of the act of state

doctrine looks at several factors, including the

“degree of codification or consensus concerning a

particular area of international law,” the importance

of the “implications of an issue for our foreign

relations” and whether “the government which

perpetrated the challenged act of state” is still in

existence. This prudential doctrine therefore serves

as an effective tool to prevent A’'’S litigation from

15

intruding into the foreign affairs powers of the

Executive Branch and to block the adjudication of

claims that improperly intrude into the domestic

sovereignty of foreign states.

Since the doctrine applies whenever a court

“must decide -- that is, when the outcome of the case

turns upon -- the effect of official action by a foreign

sovereign,” W.S. Kirkpatrick, 493 U.S. at 406, the

doctrine may be invoked by private parties. See, e.g.,

Clayco Petroleum Corp. v. Occidental Petroleum

Corp., 712 F.2d 404, 408 (9th Cir. 1983).

ATS claims were dismissed, in part, under the

act of state doctrine in Doe v. Israel, 400 F. Supp. 2d

86, 114 (D.D.C. 2005) (“[t]o permit the validity of

the acts of [Israel] to be reexamined and perhaps

condemned by the courts of [the United States]

would very certainly imperil the amicable relations

between [those] governments and vex the peace of

nations,” quoting Sabbatino, 376 U.S. at 415. In Doe

v. Lui Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004),

Falun Gong practitioners sued the mayor of Beijing

and a deputy provincial governor alleging they were

detained and tortured. The court found that the act

of state doctrine applied to acts that are covertly

authorized, and therefore “ratified,” by the

government, even if against domestic law. }°

10 The act of state doctrine is not used more often in ATS

cases because Sosa requires that ATS claims be based on

international norms with “definite content and acceptance

among civilized nations” equivalent to “the historical paradigms

familiar when section 1350 was enacted.” 542 U.S. at 732. Asa

result, foreign states rarely declare that the violations at issue

are the public policy of that state.

16

When ATS cases challenge acts that are the

official acts of a foreign government, the act of state

doctrine provides another means by which courts

ensure that those cases do not trespass on the

foreign affairs powers of the U.S. Executive Branch

or interfere with the domestic sovereignty of foreign

states.

3. COMITY

The comity doctrine responds directly to

concerns about adjudication of claims that involve

more than one sovereign state. “Comity refers to the

spirit of cooperation in which a domestic tribunal

approaches the resolution of cases touching the laws

and interests of other sovereign states.” Societe

Nationale Industrielle Aerospatiale v. United States

Dist. Court for the S. Dist. of Iowa, 482 U.S. 522, 544

n.27 (1987). International comity guides the federal

courts where “the issues to be resolved are entangled

in international relations.” In re Maxwell Commc’n

Corp., 93 F.3d 1036, 1047 (2d Cir.1996).!!

Comity today is invoked when courts decline

to assert jurisdiction in deference to “the interests of

our government, the foreign government and the

ul The term “comity” is used to refer to multiple doctrines.

See generally Michael D. Ramsey, Escaping ‘International

Comity, ” 83 Iowa L. Rev. 893, 897 (1998) (describing numerous

strands of the comity doctrine). In the context of ATS claims,

comity generally refers to limits on the reach of the U.S. courts,

and authorizes courts to decline jurisdiction over matters more

appropriately adjudicated in another forum.

17

international community in resolving the dispute in

a foreign forum.” Ungaro-Benages v. Dresdner Bank

AG, 379 F.3d 1227, 1238 (11th Cir. 2004). The

doctrine thus addresses concerns expressed by

foreign governments who suggest that their own

courts provide a more appropriate forum for

resolution of claims that involve foreign parties and

facts that arise in a foreign state. As stated by the

Federal Republic of Germany, in a brief submitted to

this Court, “[i]Jt is reasonable to request that the

United States courts exercise judicial restraint,

under the principle of international comity, and take

into account the availability of venues with a more

significant nexus before applying the ATS to torts

committed on foreign soil by foreign tortfeasors that

injured foreign victims and have no nexus to the

United States.” F.R.G. Br. Amicus Curiae at 13.

In Ungaro-Benages, the Eleventh Circuit

dismissed claims arising out of the seizure by the

Nazi government of plaintiffs family’s property. The

court assessed the interests of the U.S. and German

governments and the alternative forum offered as a

result of a U.S.-German agreement to resolve Nazi-

era compensation claims. 379 F.3d at 1239-40. By

contrast, courts have declined to dismiss claims

based on comity where a foreign State did not object

to the litigation. In Bigio v. Coca-Cola Company, 448

F.3d 176, 178 (2d Cir. 2006), affd, 675 F.3d 163 (2d

Cir. 2012) for example, the Second Circuit declined to

dismiss on the basis of international comity when the

foreign state expressed no objection to the

adjudication of the controversy by United States

courts. The Bigio court described international

comity as “a discretionary act of deference by a

national court to decline to exercise jurisdiction in a

18

case properly adjudicated in a foreign state.” Id.

(Quoting Jn re Maxwell Comm. Corp., 93 F.3d 1036,

1047 (2d Cir. 1996)).

A dismissal based on comity would also be

inappropriate where the proposed alternative forum

is not capable of fairly resolving the claim. As the

Federal Republic of Germany emphasized in its

amicus brief, “it would certainly be inappropriate to

require plaintiffs to exhaust their legal remedies in

countries which have a proven record of human

rights violations and no due process... .” F.R.G.

Br. Amicus Curiae at 13. !”

The comity doctrine serves as one means by

which courts can decline adjudication of ATS

litigation that infringes on the sovereignty of foreign

States.

C. FORUM NON CONVENIENS

The doctrine of forum non conveniens directly

addresses concerns about whether claims arising in

the territory of a foreign state are properly litigated

in the U.S. courts. Simply put, if a claim has no

nexus to the United States, and there is an

alternative, more convenient forum in which the

claim can be litigated, the district court should grant

12 Forum non conveniens motions will be denied when the

legal system of the state where the abuses took place does not

offer the plaintiffs a fair hearing. However, as more legal

systems develop the willingness to handle human mnghts cases

in accordance with due process, fewer such claims will be

litigated outside the forum in which the incidents occurred.

19

a forum non conveniens motion.!% As this Court has

noted, “The principle of forum non convenience is

simply that a court may resist imposition upon its

jurisdiction even when jurisdiction is authorized by

the letter of a general venue statute.” Gulf Oil Corp.

v. Gilbert, 330 U.S. 501, 507 (1947). Dismissal for

forum non conveniens reflects a court’s assessment of

a “range of considerations, most notably the

convenience to the parties and the _ practical

difficulties that can attend the adjudication of a

dispute in a certain locality.” Sinochem Intl Co.,

Ltd. v. Malaysia Intl Shipping Corp., 549 U.S. 422,

429-30 (2007) (quoting Quackenbush v. Allstate Ins.

Co., 517 U.S. 706, 723 (1996)). A federal court has

discretion to dismiss a case on the ground of forum

non conveniens when litigation in the U.S. court

would impose a burden on the defendant out of

proportion to the plaintiffs convenience. Jd. A court

may also grant a forum non conveniens motion when

“the chosen forum [fis] inappropriate because of

considerations affecting the court’s own

administrative and legal problems.” Jd. (internal

quotations and additional citations omitted).

The forum non conveniens doctrine clearly

applies to ATS cases. Thus a federal court presented

with a claim under the ATS has the power to dismiss

a case where that case would be more appropriately

brought in a foreign court. Indeed, as detailed below,

13 Amici understand that Defendant in this case did not

file a motion to dismiss for forum non conveniens. Petitioners’

Supplemental Opening Brief, Kiobel v. Royal Dutch Petroleum

Co., No. 10-1491, at 4 (June 6, 2012). Amici take no position on

how a forum non conveniens analysis would have applied to the

facts of this case.

courts have applied the doctrine to dismiss cases

brought under the ATS. These decisions reflect the

success of the doctrine in excluding from U.S. courts

cases that are more properly litigated in a foreign

forum.

Forum non conveniens requires a two-step

inquiry into whether an adequate alternative forum

exists and, if so, whether private and public interest

factors, in balance, favor dismissing the case. Piper

Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981).

Ordinarily, the requirement that an adequate

alternative forum exists is satisfied when the

defendant is amenable to process in the foreign

jurisdiction. Gilbert, 330 U.S. at 506-507. The

defendant thus has the ability to meet the

requirement of availability by agreeing to submit to

the jurisdiction of the foreign forum. See, e.g.,

Aguinda v. Texaco, Inc., 303 F.3d 470, 475-76 (2d

Cir. 2002) (upholding FNC dismissal after defendant

consented to Ecuadorian jurisdiction); Barboza uv.

Drummond Co., No. 06-61527, slip op. at 6 (S.D. Fla.

July 17, 2007) (in a case brought by Colombian

plaintiffs for injuries incurred in Columbia,

Colombian courts deemed. “available” because of

defendants voluntary submission to the Colombian

court’s jurisdiction).

U.S. courts generally assume that the courts

of a foreign state are adequate and available to

resolve claims arising in their territory. Gilbert, 330

U.S. at 506-07. Thus, our courts routinely reject

claims that foreign courts are inadequate because of

corruption or administrative problems. In Turedi v.

Coca Cola Co., 343 Fed. Appx. 623 (2d Cir. 2009), for

example, the Second Circuit upheld the district

21

court’s finding that Turkey was an adequate forum,

relying on the uncontradicted declarations of three

Turkish law experts who concluded that Turkish law

contained procedural and substantive provisions

providing the plaintiffs with adequate remedies. Id.!4

In some cases involving allegations of human

rights violations, the courts of the state where the

abuses occurred may not offer an adequate

alternative forum because of the potential danger to

the plaintiffs. Cf. Rasoulzadeh v. Associated Press,

574 F. Supp. 854, 861 (S.D.N.Y. 1983) (denying

motion for FNC dismissal because, “if the plaintiffs

returned to Iran to prosecute this claim, they would

probably be shot.”). Plaintiffs’ allegations that they

would be in danger, however, do not automatically

require dismissal of a forum non conveniens motion.

In Aldana v. Del Monte Fresh Produce N.A., Inc., 578

F.3d 1283 (11th Cir. 2009), for example, the Eleventh

Circuit went so far as to affirm a forum non

conveniens dismissal of claims arising out of alleged

human rights abuses in Guatemala, despite

plaintiffs’ claim that Guatemala was not safe for

them. The Eleventh Circuit found that a proviso

that the dismissal would be reconsidered if there

were any indication that the plaintiffs would be

required to return to Guatemala to prosecute their

4 Each defendant had agreed that, if plaintiffs “commence

litigation in Turkey arising out of the circumstances and

genera! claims asserted” in this case, it will (a) accept service of

process and the Turkish court's exercise of personal

jurisdiction; (b) not assert statute of limitations defenses in

Turkey that would be unavailable here; and (c) satisfy any final

judgment issued by a Turkish court. /d. at 626.

ta

to

suit was sufficient to meet the plaintiffs’ concerns.

Id. at 1291.

The forum non conveniens doctrine permits

the courts to deny dismissal of claims in the small

number of cases that involve events in foreign states

but are properly litigated in U.S. courts because

there is no alternative forum, as when ongoing

human rights violations render the proposed forum

dangerous. For example, in Licea v. Curacao

Drydock Co., 537 F. Supp. 2d 1270, 1274 (S.D. Fla.

2008), the plaintiffs, Cuban nationals, filed suit after

they had escaped from Curacao and obtained

political asylum. The plaintiffs alleged that the

Cuban government and the defendants, with the

support of the Curacao government, had conspired to

traffic them to Curacao where they were detained in

slave-like conditions and forced to work, without pay,

for the defendant.'® The court denied a forum non

conveniens motion after finding that plaintiffs had a

reasonable fear for their safety if they returned to

Curacao, a country to which they went only under

force, and where they were detained, abused, and

allegedly pursued when they sought to escape, by

both Cuban government agents and a private

security firm hired by the defendant. Jd. at 1275.

With neither Curacao nor Cuba providing an

adequate alternative forum, U.S. courts offered the

only possible remedy for these plaintiffs, who were,

at the time the lawsuit was filed, living in the United

States. See also Presbyterian Church of Sudan v.

Talisman Energy, Inc., 244 F. Supp. 2d 289, 335-36

16 Defendants admitted that they had paid part of the

plaintiffs’ earnings to the government of Cuba. /d. at 1272.

Plaintiffs alleged that the forced labor regime was designed, in

part, to evade U.S. sanctions on the government of Cuba. Id.

23

(S.D.N.Y. 2003), dismissed on other grounds, 582

F.3d 244 (2d Cir. 2009) (finding that Sudan was not

an adequate alternative forum because of allegations

that the government of Sudan was involved in a

genocidal campaign against the plaintiffs). In such

cases, the U.S. court is an appropriate forum

precisely because the foreign state denies the

plaintiffs a forum in which they can raise their

claims.

Although a plaintiffs decision to file in the

United States receives substantial deference when

the plaintiff is a citizen or resident of the United

States, foreign plaintiffs do not receive the same

degree of deference. Piper, 454 U.S. at 255-56, 256

n.23. In this way, the forum non conveniens doctrine

again responds directly to the concerns triggered by

claims by foreign plaintiffs based on events that take

place in a foreign state.

If a foreign state offers an adequate

alternative forum, a court will grant a forum non

conveniens motion if the private and public factors

weigh in favor of dismissal. This Court has directed

the district courts to consider private interest factors

including the degree to which the plaintiff or the

lawsuit has a bona fide connection to the United

States and to the forum of choice, and the degree to

which considerations of convenience favor the

conduct of the lawsuit in the United States. Jd. The

public interest factors include lessening congestion in

the courts, having local controversies decided locally,

not imposing jury duty on people in a community

that has no interest in the litigation, and avoiding

the difficulty of applying foreign law. Gilbert, 330

U.S. at 508-09. These same factors are analyzed in

24

ATS cases.

Aldana, for example, analyzed the Gilbert

factors and concluded that the balance weighed in

favor of dismissal. The Court approved a district

court’s findings pointing to the ease of access to

sources of proof, including the fact that the alleged

misconduct occurred in Guatemala and significant

expense would be incurred in transporting evidence

to the United States from Guatemala. The court also

considered additional practical and _ logistical

difficulties, including, for example, the fact that few

of the witnesses were able to speak English.

As to the public interest facts, the Aldana

court noted that the dispute was “quintessentially

Guatemalan,” involving “one of Guatemala’s largest

private employers in one of Guatemala’s most

important economic sectors” and “one of Guatemala’s

most influential labor unions.” The district court

concluded that while “there is a strong public

interest in favoring the receptivity of United States

courts to [torture] claims under 28 U.S.C § 1350,

there is a greater policy interest in preventing forum

shopping, as well as in protecting comity between the

United States and other nations and other such

interests.” 578 F. 3d at 1299, 1305. On appeal, the

Eleventh Circuit affirmed the forum non conveniens

dismissal, concluding: “Since the underlying events

took place in Guatemala, all of the individuals

involved were (at least at the time) Guatemalan

citizens, and Guatemalan political and economic

tensions form the essential backdrop to the entire

dispute, we are hard-pressed to say that the district

court abused its discretion in reaching this

conclusion... .” Id. at 1299-1300.

25

By contrast, in a case involving a U.S.

corporation, with the key witnesses and evidence in

the United States, the Second Circuit denied a forum

non conveniens motion. Bigio v. Coca Cola Co., 448

F.3d at 179-80. In that case, in addition to the

location of witnesses and evidence, the plaintiffs

informed the court that they had been unsuccessful

in a prior attempt to litigate in Egypt. Jd. In looking

to the public interest, the court concluded that the

U.S had a significant interest in whether a U.S.

company should be held liable for the confiscation of

plaintiffs’ property. Moreover, Egypt raised no

objection to the U.S. court deciding this case.

Proper application of the forum non

conveniens doctrine to ATS claims will prevent the

inappropriate use of U.S. courts. Im cases that

involve foreign plaintiffs, foreign defendants, and

foreign claims, and have no nexus to the United

States, forum non conveniens motions will generally

be granted, except for the rare cases in which the

courts of the state where the abuses took place do not

satisfy the forum non conveniens doctrine’s adequate

alternative forum requirement.'® As in any area of

the law, difficult cases inevitably foster controversy

about the proper application of the doctrine. Those

exceptional cases, however, should not lead to

creation of a new rule that would reject all ATS

claims arising in foreign states.

16 In cases in which there is no adequate alternative

forum, dismissal of a case filed in a U.S. court would deny the

plaintiffs of any remedy at all. But even such cases will be

heard in our courts only if none of the other doctrines discussed

in this brief require dismissal.

26

D. EXHAUSTION OF DOMESTIC

REMEDIES

Some courts have responded to concerns about

asserting jurisdiction over claims that arise in

foreign States by imposing a requirement that the

plaintiff exhaust domestic remedies before

attempting to sue in this country.'? As applied to

U.S. human rights litigation, the doctrine may call

for dismissal if the claimant has not attempted to

obtain redress through adequate, available remedies

in the place where the injuries occurred.

The international law doctrine of exhaustion

of domestic remedies originated in the requirement

that a citizen of one state who is injured in a foreign

state must exhaust remedies in the state where the

injury occurred before asking his or her own

17 In this and related cases, representatives of foreign

governments have suggested to this Court that imposition of an

exhaustion requirement would respond to concerns about U.S.

assertions of jurisdiction over claims that arise in other States.

See, e.g., Brief of Amicus Curiae the European Commission in

Support of Neither Party, Sosa v. Alvarez-Machain, No. 03-339,

2004 WL 177036 at *24 (U.S.) (Appellate Brief) (Jan. 23, 2004)

(urging imposition of an exhaustion requirement and stating

that “an exercise of universal civil jurisdiction should be

predicated on a showing that there was no reasonable prospect

of redress in either a State exercising jurisdiction on a

traditional basis or through an international mechanism.”). See

also F.R.G. Br. Amicus Curiae at 13-15 (exhaustion of domestic

remedies should be required in ATS cases); Brief of the

Governments of Australia and the United Kingdom of Great

Britain and Northern Ireland as Amici Curiae in Support of the

Petitioners on Certain Questions Raised in the Petition for

Certiorari, Rio Tinto PLC v. Alexis Holyweek Sarei No. 11-649,

2011 U.S. Briefs 649 (Dec. 28, 2011) (same).

27

government to take up the dispute with the foreign

government. See Banco Nacional de Cuba v.

Sabbatino, 376 U.S. at 422-23 (“the usual method for

an individual to seek relief’ for a wrong occurring in

a foreign state, “is to exhaust local remedies and

then repair to the executive authorities of his own

state to persuade them to champion his claim in

diplomacy or before an international tribunal.”);

Mavrommatis Palestine Concessions case, P.C.1.J.

(1924), Series A, No. 2, at 12 (noting that a State is

entitled to espouse the claims of its citizens for

injuries inflicted by another State only if the citizens

“have been unable to obtain satisfaction through the

ordinary channels.”); Restatement (Third) of Foreign

Relations Law of the United States § 703 cmt. d

(1987) (same). Several international treaties require

that petitioners exhaust remedies in the place where

the injury occurred before filing complaints with

human rights tribunals. See, e.g., International

Covenant on Civil and Political Rights, art. 41(1)(c),

opened for signature Dec. 16, 1966, 999 U.N.T.S. 171

(requiring exhaustion of domestic remedies);

Organization of American’ States, American

Convention on Human Rights, art. 46, Nov. 22, 1969,

1144 U.N.T.S. 123 (same); European Convention for

the Protection of Human Rights and Fundamental

Freedoms, art. 35(1), Nov. 4, 1950, 213 U.N.T.S. 221

(same).

As incorporated into the Torture Victim

Protection Act, 28 U.S.C. § 1350 (note), the

exhaustion doctrine instructs the courts to dismiss a

claim “if the claimant has not exhausted adequate

and available remedies in the place in which the

conduct giving rise to the claim occurred.” Id. at §

2(b). The TVPA requirement that such remedies be

28

both “adequate” and “available” tracks the identical

requirement in international law. See Restatement

(Third) § 703 cmt. d (noting international law

requirement that claimant exhaust “available”

remedies).

Although the Alien Tort Statute does not

specify that domestic remedies must be exhausted,

this Court in Sosa stated that it would “certainly

consider” an exhaustion requirement “in = an

appropriate case.” 542 U.S. at 733 n.21. In response,

the Ninth Circuit imposed a_ requirement of

“prudential exhaustion” that led to the dismissal of

several ATS claims. Sarei v. Rio Tinto plc, 550 F.3d

822 (9th Cir. 2008) (en banc), on remand, 650 F.

Supp. 2d 1004 (C.D. Cal. 2009), affd in part, rev'd in

part, 671 F.3d 736 (9th Cir. 2011), pet. for cert. filed,

80 BNA U.S.L.W. 3335 (Nov 23, 2011) (No. 11-649). !8

Sarei explained that “prudential exhaustion” may

require exhaustion of domestic remedies where the

nexus to the United States is weak and the claims do

not involve human rights violations of universal

concern. Jd. at 831. On remand, the district court

held that exhaustion would be required for several

claims. Sarei, 650 F. Supp. 2d at 1031. On appeal,

the Ninth Circuit affirmed the district court’s

application of the exhaustion doctrine. Sarei, 671

F.3d at 754-55.

18 The D.C. Circuit noted the possibility of an exhaustion

requirement in Doe v. Exxon Mobil Corp., 654 F.3d 11, 26-27

(D.C. Cir. 2011), but declined to dismiss claims on appeal! in

light of the District Court’s “unchallenged” finding that efforts

to litigate the claims in the home country would be “futile.” Zd.;

but see Jean v. Dorelien, 431 F.3d 776, 781 (lith Cir. 2005)

(stating, without further discussion, “[T]he exhaustion

requirement does not apply to the AT[S]”).

29

The exhaustion of domestic remedies doctrine

responds directly to the concerns over efficient

dispute resolution and respect for the sovereignty of

foreign States that are central to the debate about

over extraterritorial ATS claims.’ As one

commentator noted, by imposing a _ prudential

exhaustion requirement, the Ninth Circuit has

“significantly constrained the most aggressive

extraterritorial applications of the ATS.”

Developments in the Law---Extraterritoriality, 124

Harv. L. Rev. 1226, 1245 (2011).

CONCLUSION

Through application of the well-established

doctrines discussed in this brief, the courts can

effectively respond to the concerns raised by ATS

claims arising in the territory of foreign sovereigns.

It is not necessary to preclude litigation of all such

claims in order to avoid interfering with the powers ~

of the Executive Branch or infringing on the

19 U.S. domestic law imposes exhaustion of remedies

requirements that respond to the same concerns as the

international doctrine. Exhaustion of administrative or local

remedies promotes efficiency by encouraging a local fact-finding

body to resolve the controversy. McCarthy v. Madigan, 503

U.S. 140, 145 (1992), superseded by statute as stated in Booth v.

Churner, 532 U.S. 731, 732 (2001). Exhaustion also promotes

comity, by affording respect to the decision-making authority of

a local tribunal. See, e.g., Castille v. Peoples, 489 U.S. 346, 349

(1989) (noting that exhaustion requirement is “grounded in

principles of comity.”); Jowa Mut. Ins. Co. v. LaPlante, 480 U.S.

9, 14-15 (1987) (explaining that tribal] court exhaustion reflects

the fact that Indian tribes retain attributes of sovereignty).

Exhaustion also serves to avoid “unnecessary conflict” between

separate judicial systems. Ex Parte Royall, 117 U.S. 241, 251

(1886).

sovereignty of foreign states, or to ensure that claims _

are dismissed in favor of litigation in a more

convenient forum.

Respectfully submitted,

ALLAN IDES

Counsel of Record

LOYOLA LAW SCHOOL

LOS ANGELES

919 Albany Street

Los Angeles, CA 90015

(213) 736-1464

idesa@lls.edu

Theresa M. Traber

Bert Voorhees

Traber & Voorhees

128 N. Fair Oaks Avenue

Pasadena, CA 91103

Tel: (626) 585-9611

Fax: (626) 585-1400

tmt@tvlegal.com

June 11, 2012 Counsel for Amici Curiae

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