The Road Beyond Kiobel: The Fifth Circuit's Decision in Adhikari v. Kellogg Brown & Root, Inc. and its Implications for the Alien Tort Statute

Boston College Law Review, Jun 2018

On January 3, 2017, in Adhikari v. Kellogg Brown & Root, Inc., the U.S. Court of Appeals for the Fifth Circuit held that the Alien Tort Statute (“ATS”) did not provide jurisdiction for claims brought against a U.S. military contractor for torts committed in Iraq. In foreclosing plaintiffs’ claims, the Fifth Circuit held that the presumption against the ATS’s extraterritorial application barred claims for injuries occurring outside the United States’ territory. In so ruling, the court created a circuit split with the Fourth Circuit, which in Al Shimari v. CACI Premier Technology, Inc. held that the ATS provided jurisdiction for claims brought against a U.S. government contractor for torts committed in Iraq. This Comment argues that the Fifth Circuit adopted a restrictive approach to the meaning of the Supreme Court’s “touch and concern” language in Kiobel v. Royal Dutch Petroleum Co. and engaged in a rigid application of the Supreme Court’s “focus” test from Morrison v. National Australia Bank Ltd. The Fifth Circuit’s holding betrays the purpose of the ATS and is inconsistent with the Supreme Court’s ATS jurisprudence.

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The Road Beyond Kiobel: The Fifth Circuit's Decision in Adhikari v. Kellogg Brown & Root, Inc. and its Implications for the Alien Tort Statute

The Road Beyond Kiobel: The Fifth Circuit's Decision in Adhikari v. Kellog g Brown & Root, Inc. and its Implications for the Alien Tort Statute Vasundhara Prasad 0 1 2 Transnational Law Commons 0 1 2 0 This Comments is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information , please contact 1 Vasundhara Prasad, The Road Beyond Kiobel: The Fifth Circuit's Decision in Adhikari v. Kellogg Brown & Root, Inc. and its Implications for the Alien Tort Statute , 59 B.C.L. Rev. E. Supp. 369, 2018 2 Boston College Law School Part of the International Law Commons; Jurisdiction Commons; Torts Commons; and the - 1 28 U.S.C. § 1350 (2012). The actual language of the ATS provides: “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Id. This language has changed slightly since the enactment of the statute, although it remains substantively the same: in its original form, the ATS pr ovided that “[the District Courts] shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.” Judiciary Act of 1789, ch. 20, § 9(b),1 Stat. 73, 77 (1789). The word jurisdiction in this definition was derived fromtheLatin jus or juris plus dicere, which translates in English to “to speak the law.” Filartiga v. Pena- Irala,630 F.2d876,886 (2d Cir. 1980) (explaining that because a case arises under the laws of the United States for Article III purposes if it is either grounded upon statutes enacted by Congress or upon U.S. common law and because the law of nations became a part of U.S. common law when the Constitutionwas adopted, the enactment of the ATS was therefore authorized by Article III of the U.S. Constitution); Anthony J. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. significantly limited the scope of the ATS and the potential claims that could be brought under it. 2 The Court in Kiobel held that the ATS did not apply extraterritorially, i.e., the statute did not provide jurisdiction for violations of the law of nations committed outside the territory of the United States.3 The Court in Kiobel, however, went on to enunciate a novel “touch and concern” test that courts could use to overcome the ATS’s presumption against extraterritorial application.4 In a few sentences at the end of its decision, the Court explained that certain claims may “touch and concern the territo ry of the United States . . . with sufficient force to displace the presumption against e xtraterritorial application.” 5 This new standard has prompted much uncertainty as to its proper interpretation.6 After Kiobel, the “touch and concern” standard has bee n applied by five circuits and dozens of district courts. 7 These courts have principally disagreed on how to approach the “touch and concern” inquiry and what factors to take Colangelo, What Is Extraterritorial Jurisdiction? 99 CORNELL L. REV (Large and small caps). 1303, 1310 (2014). 2 See Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124–25 (2013) (concluding that the presumption against the extraterritorial application of a statute passed by Congress applied to claims under the ATS and that nothing in the plain language of the statute barred that presumption). 3 Id. The law of nations is the body of law that teaches us about the rights existing between nations or states, and the duties corresponding to those rights.EMMERICH DE VATTEL, LAW OF NATIONS, OR, PRINCIPLES OF THE LAW OF NATURE, APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS, at iii–v (6th ed. 1844). The various sources of the law of nations are the following: (1) text writers of authority, like famous jurists and code- writers from around the world; (2) treaties between nations symbolizing peace, alliance and commerce, and demonstrating changes to pre-existing international norms; (3) marine ordinances of nations prescribing rules for maritimewar, and proclamations and guidance issued to the various branches of the government or to the citizens of the state at large; (4) the adjudication of international tribunals; (5) diplomatic correspondence repr esenting the views of leaders, as well as the written opinions of jurists that serve as advice to their own leaders; and, (6) the history of the wars, negotiations, and peace treaties relating to the interactions between nations. See HENRY WHEATON, ELEMENTS OF INTERNATIONAL LAW 22, 24–25,29,31(5th ed. 1916). 4 Kiobel, 569 U.S. at 124– 25. The Court did not define the term “touch and concern,” which led to much confusion among the lower courts as to what kind of claims could sufficiently “touch and concern” the territory of the United States so as to displace the ATS’s presumption against extraterr itoriality. See id. 5 Id. (citing Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 266–73 (2010)). 6 See id. at 125–26. (Alito, J., concurring) (recognizing that the Court’s formulationof the“touch and concern” test leaves open many ambiguities); Tymoshenko v. Firtash, No. 11 -CV-2794 (KMW), 2013 WL 4564646, at *4 (S.D. N.Y. Aug. 28, 201 3) (noting that the Supreme Court did not provide much guidance regarding what is necessary to satisfy Kiobel’s “touch and concern” standard). 7 See Adhikari v. Kellogg Brown & Root, Inc., 845 F.3d 184 (5th Cir. 2017); Mujica v. AirScan Inc., 771 F.3d 580 (9th Cir. 2014); Mastafa v. Chevron Corp., 770 F.3d 170 (2d Cir. 2014); Cardona v. Chiquita Brands Int’l, Inc., 760 F.3d 1185 (11th Cir. 2014); Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516 (4th Cir. 2014).See generally Doe v. Exxon Mobil Corp., 69 F. Supp. 3d 75 (D.D.C. 2014); Firtash, 2013 WL 4564646. into account when determining the “focus” of the ATS. 8 This Comment argues that the Fifth Circuit in 2017 in Adhikari v. Kellogg Brown & Root, Inc., was too formulaic in its approach to interpreting the Supreme Court’s guidance in Kiobel on what claims could overcome theATS’s presumption against extraterritorial application. 9 Part I o f this Comment discusses the legislative history of the ATS and the Supreme Court’s analysis in Kiobel and in its 2010 decision, Morrison v. National Australia Bank Ltd .10 Part II of this Comment discusses the Fifth Circuit’s interpretation of Kiobel’s “touch and concern” test and Morrison’s “focus” test. 11 Part III of this Comment argues that the Fifth Circuit was short-sighted in its approach to determining the true “focus” of plaintiffs’ATS claims, and that this decision has severe implications for not only American foreign policy, but also for the future of the ATS.12 I. THE ROAD TO KIOBEL: LEGISLATIVE HISTORY OF THE ALIEN TORT STATUTE Section A of this Part presents an overview of the history of the ATS and its earlier interpretations by the Supreme Court.13 Section B examines in detail a seminal case within the ATS Jurisprudence,Kiobel, which established the “touch and concern” test. 14 Section C outlines two other recent decisions from the Supreme Court, Morrison and the 2016 decision, RJR Nabisco, Inc. v. European Community, and explains the way in which the Court has evolved its 8 See Morrison, 561 U.S. at 266. Although the Supreme Court did not explicitly define the term “focus” in Morrison, it explained that the “focus” of a statute could be found by determining what alleged tortious conduct was the “focus of congressional concern” when the statute was enacted, i.e., what conduct did Congress seek to prohibit by the adoption of this statute. Id.; see also Mastafa, 770 F.3d at 189 (disagreeing with the idea that a defendant’s American citizenship is important for the jurisdictional analysis under the ATS because the Supreme Court made clear in Kiobel that only the defendant’s conduct was relevant to determining the “focus” of the ATS);Al Shimari, 758 F.3d at 520, 530–31 (advocating for a broad, fac-tbased inquiry that takes into account all pertinent facts underlying a plaintiff’s claim, including but not limited to, the defendant’s citizenship or corporate presence in the United States; whether Congress intended that the case be heard in the U.S. federal courts; important American foreign policy interests implicated by the nature of the defendant’s conduct; the nationality of the defendant’s employees; and, the “focus” of the plaintiff’s claims); Mwani v. Laden, 947 F. Supp. 2d 1, 5 (D.D.C. 2013) (looking at both defendants’ U.S. -based conduct, as well as the intended effect of the conduct in the United States in conducting the “touch and concern” juri sdictional analysis for an ATS claim against Osama bin Laden and al -Qaeda stemmingfromthe bom bing of the U.S. Embassy in Nairobi). 9 See infra notes 13–112 and accompanying text. 10 See infra notes 13–39 and accompanying text. 11 See infra notes 40–83 and accompanying text. 12 See infra notes 84–112 and accompanying text. 13 See infra notes 16–22 and accompanying text. 14 See infra notes 23–31 and accompanying text. analysis of the “focus” test to determine what circumstances are sufficient to displace the ATS’s presumption against extraterritorial application.15 A. The History of Alien Tort Statute Jurisprudence The ATS was passed by the First Congress as part of the Judiciary Act of 1789, and provides federal district courts with original jurisdiction over any civil action brought by an alien for a tort committed in violation of the law of nations.16 The jurisdictional grant of the ATS, at the time of its enactment, was limited to providing a cause of action for only three violations of international law—piracy, violations of safe conduct, and offenses against ambassadors.17 Courts have since recognized, however, that the statute provides jurisdiction 15 See infra notes 32–39 and accompanying text. 16 U.S. CONST. art. III, § 1; 28 U.S.C. § 1350; Judiciary Act of 1789, ch. 20, §§ 2– 4, 1 Stat. 73, 73–75 (1789); see Kiobel, 569 U.S. at 114 (noting that the ATS was passed as part of the Judiciary Act of 1789); see also Sosa v. Alvarez-Machain, 542 U.S. 692, 719–20 (2004) (explaining that it is not likely that the First Congress passed the ATS without meaning for it to have a practical effect; in fact, it is likely that the First Congress intended the ATS to provide jurisdiction for a limited number of torts in violation of international law); John B. Bellinger III, Legal Advisor to U.S. Sec’y of State, Enforcing Human Rights in U.S. Courts and Abroad: The Alien Tort Statute and Other Approaches, Speech at the 2008 Jonathan I. Charney Lecture in International Law, in 42 VAND. J. TRANSNAT’L L. 1, 3 (2009) (explaining that the First Congress, by passing the ATS, likely intended to provideercourse for crimes committed by American citizens against foreign officials within the territory of the United States); Anne- Marie Burley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 AM. J. INT’L L. 461, 465 (1989) (noting that the ATS, by providing access to the federal courts, minimized the chance of justice being denied to alien parties when sued in state courts where state judges were less likely to be sensitive about national concerns). There are two general theories about the ATS’s origins: the citizenship view and the specific tort view. Kedar S. Bhatia, Comment, Reconsidering the Purely Jurisdictional View of the Alien Tort Statute,27 EMORY INT’L L. REV. 447, 453 (2013). Under the first view, it is believed that the ATS was designed to give aliens a forum to litigate torts committed by citizens of the United States against aliens within the borders of the United States. Id. Under the second view, it is believed that the ATS was designed to serve as a cause of a ction for only a small set of specific torts. Id. at 454. The Supreme Court eventually adopted this view in Sosa, when it concluded that the ATS only allowed claims for torts that Sir William Blackstone identified as the principal violations of the law of nations: piracy, violations of safe conduct, and di sputes regarding ambassadors. Sosa, 542 U.S. at 724; Bhatia, supra, at 454. For the three primary o ffenses against the law of nations that Blackstone identified, see 4 WILLIAM BLACKSTONE, COMMENTARIES *68. 17 See Sosa, 542 U.S. at 724 ( concluding that the jurisdictional grant of the ATS is based on the understanding that the common law would provide a cause of action for a limited number of violations of the law of nations, and that the First Congress probably had in mind onlythreesuch violations at the time of the ATS’s enactment —piracy, violations of safe conduct,andoffensesagainstambass adors); see also Carlee M. Hobbs, Note, The Conflict Between the Alien Tort Statute Litigation and Foreign Amnesty Laws, 43 VAND. J. TRANSNAT’L L. 505, 508 (2010). But see Thomas H. Lee, The Safe-Conduct Theory of the Alien Tort Statute, 106 COLUM. L. REV. 830, 836 (2006) (arguing that the authors of the Judiciary Act meant to include only matters of safe conduct and not claims related to piracy or ambassadors). for additional violations that are both accepted by the modern civilized world and are defined with a specificity comparable to the three original violations. 18 The ATS lay dormant for almost tw o centuries following its enactment. 19 It was revived in 1980 when the Second Circuit breathed new life into it in Filartiga v. Pena-Irala by holding that torture by a state official was a violation of international human rights law, and thus, the law of tnioans.20 The standards set by Filartiga eventually became the foundation of the modern -day ATS doctrine. 21 Filartiga opened up a new field of human rights litigation, and 18 See Sosa, 542 U.S. at 732 (explaining that federal courts should not recognize private claims under federal common law for violations of any international law norm unless they are equally def inite and accepted among civilized nations as the historical paradigms prevalent when the original ATS was enacted). The Sosa Court implicitly denounced the notion that an international law violationco gnizable under the ATS had to be “shockingly egregious” or invoke “universal abhorrence.”See id. Instead, the Court left open the possibility that a successful claim under the ATS could be brought for international law violations that are well- defined and well-accepted, such as genocide or torture, but don’t shock the conscience in the same way. Bhatia, supra note 16, at 471; see Sosa, 542 U.S. at 737. 19 See Sosa, 542 U.S. at 712 (noting that the ATS only allowed for federal jurisdictioninonecase over a 170-year period); see also Curtis A. Bradley, The Alien Tort Statute and Article III , 42 VA. J. INT’L L. 587, 588 n.5 (2002) (listing thirteen cases from 1793 to 1980 in which a party unsuccessfully attempted to use the ATS as a basis for jurisdiction); Kenneth C. Randall, Federal Jurisdiction over International Law Claims: Inquiries into the Alien Tort Statute, 18 N.Y.U. J. INT’L L. & POL. 1,4n.15 (1985) (listing twenty-one published decisions prior to Filartiga, in whicha plaintiff invokedthe ATS as a basis for jurisdiction). The ATS was only upheld as a basis for jurisdiction in two reported cases prior to 1980. Bradley, supra, at 588; Randall, supra, at5. The two cases upholding jurisdiction, Adra v. Clift, 195 F. Supp. 857, 865 (D. Md. 1961), andBolchos v. Darrel, 3 F. Cas. 810, 810 (D.S.C. 1795) (No. 1607), were almost one hundred years apart. 20 See 630 F.2d at 880; Developments in the Law, Extraterritoriality, 124 HARV. L. REV. 1226, 1229 (2011) (noting that the decision in Filartiga transformed the ATS into providing jurisdictionfor human rights violations committed abroad, but the decision in Sosa limited this jurisdiction to causes of action that are “specific, obligatory, and universally accepted” by international law). In Filartiga, two citizens of Paraguay, Dr. Joel Filártiga and his daughter, filed a federal court action against Américo Noberto Peña-Irala (“Peña”), another Paraguayan citizen , for the wrongful death of Dr. Filártiga’s son, Joelito. Filartiga, 630 F.2d at 878 –79. The Filártigas alleged that Joelito had been ki dnapped and tortured to death by the Inspector General of Police in Paraguay, in retaliation for Dr. Filártiga’s political activities and beliefs. Id. at 878. The Second Circuit determined that the ATS provided federal subject matter jurisdiction over Peña. Id. at 887. The court reasoned that the ATS provides federal subject matter jurisdiction whenever an alien sues for a tort committed in violation of the law of nations. Id.; see Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995) (citing Filartiga, 630 F.2d at 887) (noting that Filartiga established that the ATS confers jurisdiction only when three conditions are satisfied: (1) a foreign national sues (2) for a tort (3) committed in violation of the law of nations). In arriving at its decision, the court extensively analyzed whether the Filártigas had alleged a violation of the law of nations. See Filartiga, 630 F.2d at 880–86 (explaining that because the Filart igas had not alleged that the torts — (wrongful death and torture—arose directly under any treaty of the United States, the court must first determine as a threshold matter whether the torts violatethe law of nations). The court stated that the law of nations could be determined by consulting the work of jurists, by following the general practice of nations, or by interpreting judicial decisions enforcing these laws. Id. at 880. 21 Filartiga, 630 F.2d at. at 887. One of the first decisions interpreting the ATS post-Filartiga was Kadic. Mohamed Chehab, Finding Uniformity Amidst Chaos: A Common Approach to Kiobel’s “Touch and Concern” Standard, 93 U. DETROIT MERCY L. REV. 119, 123 (2016); seeKadic,70F.3d at 236. In Kadic, the Second Circuit answered a novel question of whether the law of nations only the ATS quickly became the most often-used litigation route for victims of human rights abuses around the world.22 B. Kiobel’s “Touch and Concern” Test In 2013, in Kiobel, the question before the Supreme Court was whether the ATS extends to torts that are committed abroad—in other words, if theATS applies extraterritorially. 23 All nine Justices agreed on the narrow holding that where there is a foreign plaintiff, a foreign defendant, and all the relevant co nduct took place outside the United States, the ATS did not provide relief for alleged violations of the law of nations. 24 The Court’s decision relied primarily on the presumption against extraterritorial application of a federal statute, i.e., when the text of a statute gives no clear indication of an extraterritorial application, it has none. 25 The Court reiterated that this presumption against extr aterritoriality reflects the longstanding principle in American law that unless a contrary intent appears, all legislation passed by the United States Congress is applied to state actors, or whether it also applied to the conduct of private actors. Kadic, 70 F.3d. at 236. The Second Circuit concluded that the law of nations did extend to persons acting as private individuals, and an example of this would be the prohibition against piracIyd.. at 239; see also Chehab, supra, at 123. 22 See Chehab, supra note 21, at 123. After Filartiga, several plaintiffs filed over 150 ATS lawsuits, alleging abuses ranging from genocide to summary execution to war crimes . See Roger P. Alford, The Future of Human Rights Litigation After Kiobel, 89 NOTRE DAME L. REV. 1749, 1751–52 (2014). The ATS was developed exclusively by several lower courts for almost two decades until 2004, when the Supreme Court inSosa finally provided some guidance on the scope of the ATS, while leaving the door open for further litigation. Id.; see Ernest A. Young, UniversalJurisdiction,the Alien Tort Statute, and Transnational Public- Law Litigation After Kiobel, 64 DUKE L.J. 1023, 1051 (2015). In the early years following Filartiga, federal courts within the United States assumed juri sdiction on cases involving egregious human rights violations that were still relatively uncontroversial because they tended to involve private individuals affiliated with state actors no longer in power. Young, supra, at 1051 –52. Beginning in the late 1990s, however, the focus of the human rights litig ators changed and plaintiffs then began to use the ATS to bring claims against multinational corpor ations committing human rights violations abroad. Id. at 1052. 23 Kiobel, 569 U.S. at 112–13. In Kiobel, Nigerian nationals residing in the United States sued Dutch, British, and Nigerian corporations in the United States District Court for the Southern District of New York under the ATS, alleging that the corporations aidedandabettedtheNigeriangovernment in violently suppressing demonstrators who were protesting the environmental effects of oil explor ation. Id. at 113–14; see also Lyle Denniston, Kiobel To Be Expanded and Reargued , SCOTUSBLOG (Mar. 5, 2012, 2:01 PM), http://www.scotusblog.com/2012/03/kiobel -to-be-reargued/ [http://perma. cc/PR4V-T7K5] (discussing the Supreme Court’s order to the lawyersonbothsidesin Kiobel tocome back with an expanded argument on the scope of the ATS). 24 Kiobel, 569 U.S. at 124– 25. Chief Justice Roberts delivered the opinion of the Court, in which Justices Scalia, Kennedy, Thomas, and Alito joined; Justice Kennedy filed a concurring opinion; Ju stice Alito filed a concurring opinion in which Justice Thomas joined; and JusticeBreyer filedanopi nion concurring in the judgment, but not in the opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined. Id. 25 Id. at 115 (quoting Morrison, 561 U.S. at 255). meant to apply only within the territorial jurisdiction of the UnitedStates.26 Following this rationale, the Court in Kiobel held that there was no indication that the ATS was passed to make the federal district courts in the United States a preferred venue to litigate cases involving violations of the law of nations. 27 The Court, however, went on to explain that regardless of its holding, one could imagine a set of circumstances wherein certain claims “touch[ed] and concern[ed]” the territory of the United States with “sufficient force” to displace the ATS’s presumption again st extraterritorial application. 28 Although the Court did not provide much guidance on what those circumstances may be or even what it meant to “touch and concern” the territory of the United States, it did leave open the possibility for the extraterritoria l application of the ATS in some limited circumstances.29 After the Kiobel decision, some lower courts dismissed a plaintiff’s claims under the ATS if all alleged tortious conduct occurred abroad. 30 Other 26 Id. The presumption against extraterritoriality provides that all laws passed by Congress are meant to only apply within the territory of the United States, unless Congress explicitly intends ot herwise. Note, Clarifying Kiobel’s “Touch and Concern” Test, 130 HARV. L. REV. 1902, 1905–06 (2017). This presumption not only ensures that American courts do not apply American law to conduct that takes place in foreign countries, but also reinforces the understanding that Congress usually only intends its laws to apply within the territory of the United States. Id. at 1906. Furthermore, the essence behind such a presumption is that Congress ordinarily only legislates withrespect to laws that govern domestic issues, and not foreign issues. Kiobel, 569 U.S. at 115–16 (quoting Morrison, 561 U.S. at 255). 27 Kiobel, 569 U.S. at 123. The Court reasoned that such a broad reading of the ATS could lead to potential unintended battles between the domestic laws of the United States and those of other nations, which could result in international discord and create unwelcomed judicial interference in the United States’ foreign relations and policy. Id. at 116–17, 123–24. Additionally, the Court noted that accepting the plaintiffs’ view would also make the inverse true— other nations could potentially be able to hale U.S. citizens into their courts for crimes committed elsewhere. Id. at 124–25. 28 Id. at 124–25. Although the Court did not provide much guidance on the “touch and concern” language, it did opine that mere corporate presence within the United States was not proof enough that claims against those corporations “touch[ed] and concern[ed]” the territory of the United States with “sufficient force” to displace the presumption against extraterritoriality. Id. at 125; see also Doe v. Drummond, 782 F.3d 576, 594 (11th Cir. 2015) cert. denied, 136 S. Ct. 1168 (2016) (explaining that Kiobel itself supports the proposition that the corporate status of a defendant might not be dispositive to whether a claim “touch[es] and concern[s]” the territory of the United States because the Court, after stating the test, announced that if corporate presence was the only thing connecting the claim to the territory of the United States, it might not be enough). 29 See Kiobel, 569 U.S. at 124–25. 30 See Giraldo v. Drummond Co., No. 09- CV-1041, 2013 WL 3873960, *5, 8 (N.D. Ala. July25, 2013), aff’d sub nom. Doe v. Drummond, 782 F.3d 576 (11th Cir. 2015) (rejecting the plaintiffs’ a rgument that because Drummond’s CEO made the decision to provide material support to theparamilitary group in Colombia at the company’s headquarters in Alabam—aand thus within the United States—the ATS’s presumption against extraterritorial applicationhadbeen overcome).TheEleventh Circuit subsequently affirmed this decision, stating that the presumption against extraterritorialitywill be displaced only if the claims are “focus[ed]” in the United States and sufficient relevant conduct occurs within the territory of the United States. See Drummond, 782 F.3d at 592; see also Balintulo v. Daimler AG, 727 F.3d 174, 192 (2d Cir. 2013) (concluding that the ATS does not permit claims based on conduct that took place entirely outside the territory of the United States). courts, however, began to develop a post -Kiobel jurisprudence that considered more than just the location of the conduct to decide whether a plaintiff’s circumstances and claims “touch[ed] and concern[ed]” the territory of the United States with “sufficient force” to displace the ATS’s presumption agai nst extr aterritorial application.31 C. Morrison “Focus” Test and RJR Nabisco In Kiobel, after enunciating the “touch and concern” test for rebutting the ATS’s presumption against extraterritoriality, the Supreme Court cited to its 2010 decision in Morrison.32 In Morrison, the Court held that when conside ring whether a case involves a domestic application of a statute, a court must only determine whether the conduct that is the “focus of congressional concern” occurred within the territory of the United States .33 The Court reasoned that a statute did not provide relief for alleged tortious conduct occurring wit hin the territory of the United States if it never sought to regulate that conduct. 34 31 See, e.g., Al Shimari, 758 F.3d at 520 –21 (advocating for a broad, fac t-based inquiry that takes into account all pertinent facts underlying a plaintiff’s claim to determine the“focus” of theplaintiff’s claims); Mwani, 947 F. Supp. 2d at 5 (finding that the 1998 bombing outside the United States Embassy in Nairobi “touch[ed] and concern[ed]” the United States with “sufficient force” todisplacethe presumption against extraterritorial application of the ATS). 32 Kiobel, 569 U.S. at 124–25; see Morrison, 561 U.S. at 273 (concluding that the ATS’s presumption against extraterritoriality still applied when there were no securities listed on a domestic exchange, and all purchases complained by petitioners took place outside the territory of the United States). 33 Morrison, 561 U.S. at 266. The “focus of congressional concern,” is generally understood to mean the specific conduct that Congress intended to outlaw with the passage of the statute or the purpose behind the passage of the statute. See id. In Morrison, the Court found thatthe“focusofcongre ssional concern” behind the passage of the Securities Exchange Act of 1934 (“Exchange Act”) was on the purchases and sale of securities registered on domestic exchanges, i.e., Congress did not intend for the statute to apply to transactions on foreign exchanges. Id. In Morrison, the plaintiffs brought suit under § 10(b) of the Exchange Act based on alleged misrepresentations made in connection with the sales and purchases of securities registered on foreign exchanges, even though some of the misrepr esentations had taken place within the territory of the United States. Id. at 251–53. After holding that the presumption against extraterritoriality applied to § 10(b) of the Exchange Act, the Court engaged in a separate inquiry to determine whether the complaint involved a permissible domestic application of the statute when it alleged that some of the misrepresentations were made in the United States. Id. at 266. The Court’s separate inquiry considered the statute’s “focus.”Id. The Court ruled that the statute “focus” was not on the location where the misrepresentations originated, but on whether the sales and purchases of securities were made on domestic exchanges within the territory of the United States. Id. It concluded that because the statute was focused on domestic securities transactions and the plaintiffs’ alleged domestic activity consisted only of misrepresentations madein connectionwith a foreign transaction, plaintiffs had failed to show a permissibledomestic applicationof thestatute. Id. at 266–67. 34 Id. at 266–67. In Morrison, the Court explained that securities transactions on the domestic exchange was the “focus” of § 10(b) of the Exchange Act because Congress intended to regulateonly those transactions and because it intended to protect only the parties or prospective parties to those transactions. Id. Because this case did not involve any securities listedon domestic exchanges, § 10(b) of the Exchange Act could not provide any relief to the petitioners. Id. at 273. Kiobel’s citation to Morrison contributed to some confusion in the l ower courts as to whether it was essential to determine the “focus” of the ATS every time a court was faced with a domestic application of the statute. 35 In 2016, the Supreme Court’s decision in RJR Nabisco appeared to resolve this conflict when it explained that courts must conduct the “focus” analysis along with the “touch and concern” analysis when deciding whether the case involved a d omestic application of the ATS. 36 The Court explained that if the conduct rel evant to the ATS’s “focus” took place within the territory of the United States, the case was not barred by the ATS’s presumption against extraterritoriality. 37 If the conduct relevant to the “focus” of the ATS occurred outside the territory of the United States, however, the ATS could not provide jurisdiction for the case to be heard in federal courts in the United States, regardless of any other conduct that might have occurred within the territory of the United States.38 The Court, however, did not provide any guidance on how lower courts could determine the “focus” of the ATS, or what facts they could or could not take into account when making that determination.39 II. THE FIFTH CIRCUIT AND THE QUESTION OF WHAT IT MEANS TO “TOUCH AND CONCERN” THE TERRITORY OF THE UNITED STATES Section A of this Part presents the factual and procedural details of the Fifth Circuit case, Adhikari v. Kellogg Brown & Root, Inc. 40 Section B exa mines in detail how the Fifth Circuit in Adhikari determined that the “touch and concern test” from Kiobel v. Royal Dutch Petroleum Co. only allowed dome stic conduct to displace the ATS’s presumption against extraterritoriality. 41 Section C outlines the approach taken by the dissenters in Adhikari and explains how this approach is similar to the approach taken by the Fourth Circuit in Al Shimari v. CACI Premier Technology, Inc.42 A. A Sad Tale of Human Trafficking and Forced Labor: The Case Before the Fifth Circuit in Adhikari In 2017, Adhikari was brought to the Fifth Circuit by Buddi Prasad Gurung (“Gurung”) and the surviving family members of eleven other men (the “Deceased Plaintiffs”) (collectively, “Plaintiffs”)4.3 In 2004, Plaintiffs were recruited to work at a high-end hotel in Amman, Jordan by a Nepali recruiting company. 44 When they arrived in Jordan, they w ere told however that they were instead being sent to work at Al Asad, an American military base located just north of Ramadi, Iraq. 45 Despite their objections, Daoud and Par tners (“Daoud”), a subsidiary of the U.S. military contractor, Kellogg Brown & Root, Inc. (“KBR”) put the Plaintiffs in an unprotected fleet of seventeen automobiles going from Amman, Jordan to Al Asad in Iraq.46 As they were ap41 See infra notes 57–76 and accompanying text. 42 See infra notes 77–83 and accompanying text. 43 Adhikari v. Kellogg Brown & Root, Inc., 994 F. Supp. 2d 831, 833 (S.D. Texas 2014). The Deceased Plaintiffs were Prakash Adhikari, RameshKhadka,LalanKoiri,MangalLimbu,JeetMagar, Gyanendra Shrestha, Budham Sudi, Manoj Thakur, Sanjay Thakur, Bishnu Thapa, and Jhok Bahadur Thapa. Id. All of the plaintiffs were citizens of Nepal. Adhikari v. Kellogg Brown & Root, Inc., 845 F.3d 184, 190 (5th Cir. 2017). 44 Adhikari, 994 F. Supp. 2d at 833. The Nepali recruiting company was called Moonlight Co nsultant Pvt. Ltd. Id. Some of the men were told that they would be working in an American military camp, which they assumed was in the United States, and thus, Jordan would just be a brief halt before they would be taken to the United States. Id. The men were also told by the recruiting company in Nepal that they would not be taken to dangerous locations, and that if they ever found themselves ina dangerous situation, they would be sent back home to Nepal at the employer’s expense. Id. 45 Id. After the Plaintiffs and Gurung were recruited in Nepal and brought to Amman, Jordan, they were handed over to another corporation called Morning Star for Recruitment and Manpower Supply (“Morning Star”), which was a Jordanian job brokerage company operating in Amman.Id. Morning Star took care of the men when they arrived in Amman, Jordan and started preparing for them to travel to Iraq.Id. Morning Star then handed over the Deceased Plaintiffs and Gurung to Daoud and Partners, a subcontractor of Kellogg Brown & Root, Inc., who forced the men to give up their passports, leaving them with no means of escape. Id. at 833–34. Followingthis,manyofthemen expressed their desire to return home, but they were unable to do anything about it because of the amount of debt their families had undertaken to get them these jobs. Id. at 834. 46 Id. at 834. Daoud and Partners is a subcontractor of Defendant Kellogg Brown and Root, Inc.; Kellogg Brown & Root Services, Inc.; KBR, Inc.; KBR Holdings, LLC; Kellogg Brown& Root LLC; KBR Technical Services, Inc.; Kellogg Brown & Root International, Inc.; ServiceEmployees Intern ational, Inc.; and Overseas Administration Services, Ltd. (collectively, “KBR”). KBR served as a co ntractor with the United States military to perform specific duties at Al Asad, a United States military facility in Iraq. Adhikari v. Daoud & Partners, No. CIV. 09-1237, 2013 WL 4511354, at *1 (S.D. Tex., Aug 23, 2013). proaching Al Asad, two cars containing the Deceased Plaintiffs were stopped by members of an Iraqi insurgent group, the Ansar al-Sunna Army4.7 These men told the drivers of those two cars to leave the Deceased Plaintiffs at the checkpoint to Al Asad and assured them that the American soldiers would come get them from the military base very soon. 48 This turned out to be a lie, however, and the Iraqi insurgents shortly thereafter posted a statement on the internet announcing to the world that they had captured the Deceased Plaintiffs.49 A few days later, international media outlets broadcasted a video of the Iraqi insurgents beheading one of the Deceased Plaintiffs and shooting the ot her men in the backs of their heads.50 Unlike the Deceased Plaintiffs, Gurung was fortunate that the Iraqi insu rgents did not stop the car that he was travelling in. 51 Once Gurung arrived atAl Asad, he was immediately put to work as a warehouse loader/unloader. 52 When Gurung heard about the deaths of the Deceased Plaintiffs, however, hexepressed his desire to leave Iraq and go back home to Nepal but both Daoud and KBR unequivocally denied his request. 53 Gurung was eventually permitted to return to Nepal after spending fifteen months at Al Asad, during which he fr equently experienced combat -like dangerous situations without protection from the U.S. military.54 In 2008, Gur ung and the Deceased Plaintiffs, through their surviving fa mily members, filed suit against Daoud and KBR, alleging several claims, including one under the ATS.55 The district court dismissed Plaintiffs’ claims 47 Adhikari, 994 F. Supp.2d at834. Ansaral -Sunna is an outgrowth of Ansar al -Islam (Defendersof Islam), a group with ties to Iran and which U.S. administration officials have linked to Al -Qaeda. Jaish Ansar-al-Sunna, GLOBALSECURITY.ORG (Nov. 7, 2011),https://www.globalsecurity.org/military/ world/para/ansar-al-sunna.htm [http://perma.cc/97X5-PCYK]. 48 Adhikari, 994 F. Supp. 2d at 834. 49 Id. Many of the family members of the Deceased Plaintiffs saw theimages broadcastonNepali television. Id. In the video, the Plaintiffs described their trip to Iraq and explained that they had first been “kept as captives in Jordan,” and then forced to go to Iraq. Id. One of the men in the video said, “I do not know when I will die, today or tomorrow.” Id. 50 Id. Unfortunately, the family members of the Deceased Plaintiffs saw the execution video as it was being broadcasted live by international media outlets. Id. Despite these killings, the familymembers were never able to recover the bodies of the Deceased Plaintiffs. Id. 51 Id. 52 Id. 53 Id. KBR is a multinational corporation with its principal place of business in Houston, Texas. Adhikari, 2013 WL 4511354, at *1. Gurung was informed by both Daoud and KBR that he was not allowed to leave Iraq until he was done with his work at Al Asad. Adhikari, 994 F. Supp. 2d at 834. 54 Adhikari, 994 F. Supp. 2d at 834. 55 Id. at 834–35. Plaintiffs asserted claims under the Trafficking Victims ProtectionandRehabil itation Act (“TVPRA”), the Racketeering Influenced and Corrupt Organization Act (“RICO”) andth e ATS, and also brought common law negligence claims. Id. under the ATS, and Plaintiffs appealed that de cision to the Fifth Circuit Court of Appeals. 56 B. The Fifth Circuit Decides That Kiobel’s “Touch And Concern” Test Allows Only Domestic Conduct Sufficient to Violate an International Law Norm to Permit an Extraterritorial Application of the ATS The Fifth Circuit began its analysis by explaining the presumption against extraterritoriality and the two -step inquiry that determines its application to a federal statute.57 At step one, the court must determine whether the presum ption against extraterritoriality h as been invalidated by the plain language of the statute; and if not, at step two, the court must determine whether the facts of the case before it involve a domestic application of the statute.58 The Fifth Circuit acknowledged that the Supreme Court in Kiobel had already determined at step one that the presumption against extraterritoriality barred claims brought under the ATS.59 Thus, it was necessary for the Fifth Circuit to proceed to step two of the analysis and determine whether the facts alleged by plaintiffs allowed for a domestic application of the ATS. 60 The parties in Adhikari were conflicted over the meaning of Kiobel’s “touch and concern” language and how to square it withMorrison’s “focus” inquiry.61 The 56 Adhikari, 845 F.3d at 191. In November 2009, the district court granted KBR’s motion to di smiss the common-law claims, but denied KBR’s motion as to the TVPRA and ATS claims. Id. Following this, KBR filed a motion for summary judgment on Plaintiffs’ ATS claims, which the district court granted in part and denied in part. Id. The district court dismissed Plaintiffs’ claims under the ATS due to the recently released Supreme Court decision in Kiobel, but chose to deny the dismissal of Plaintiffs’ claims under the TVPRA. Id. KBR then filed an interlocutory appeal of the district court’s decision on the TVPRA claim, which the district court then decided to reconsider.Id. The district court then reversed its decision and dismissed the TVPRA claim. Id. This prompted the Plaintiffs to file motions for rehearing on the district court’s TVPRA and ATS rulings, but the district court denied these motions as well. Id. The Plaintiffs then appealed this decision to the Fifth Circuit Court of A ppeals. Id. 57 Id. at 192 (explaining that the presumption against extraterritoriality is grounded in the understanding that a federal law is only meant to apply within the territory of the United States, unless Co ngress explicitly intends otherwise). 58 Id.; see also RJR Nabisco, Inc. v. European Cmty., 1 36 S. Ct. 2090 , 2101 (2016). If the words of the statute do not directly rebut the statute’s presumption against extraterritoriality, then the statute does not have an extrat erritorial application at step one. Id. If a statute does not pass step one, howe ver, it does not mean that the statute can never apply extraterritorially as it might still pass step two, i.e., the case might warrant a domestic application of the statute. Id. 59 Adhikari, 845 F.3d at 193. 60 Kiobel v. Royal Dutch Petroleum Co.,569 U.S. 108, 124–25 (2013) (explaining that ATS claims were barred due to the presumption against extraterritoriality); Adhikari, 845 F.3d at 192. The Fifth Circuit adopted the Kiobel Court’s analysis on step one of this inquiry, and proceeded to step two noting that the Kiobel Court had not excluded the possibility that the ATS could create jurisdi ction for claims that “touch and concern” the United States with “sufficient force” to vacate the ATS’s presumption against extraterritoriality. Kiobel, 569 U.S. at 124–25; Adhikari, 845 F.3d at 192. 61 Adhikari, 845 F.3d at 194; see Kiobel, 569 U.S. at 124– 25; Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 266 (2010). Plaintiffs in Adhikari suggested that Kiobel’s “touch and concern” test Fifth Circuit, however, explained that at step two, when determining whether the facts of the case involve a domestic application of the ATS, it was essential to first determine the “focus” of the ATS, and then evaluate whether that conduct that Congress intended to regulate by passing the ATS “touch[ed] and concern[ed]” the territory of the United States. 62 To determine the “focus” of the ATS, the Fifth Circuit only cared about two inquiries: first, whether the tortious conduct alleged by Plaintiffs constituted a violation of the law of nations; and, second, whether this tortious conduct occurred within the territory of the United States.63 Plaintiffs in Adhikari argued not only that KBR’s alleged tortious conduct constituted a violation of the law of nations, but also that the conduct occurred both at Al Asad, which as a U.S. military camp was arguably under the control of the United States, and directly within the territ ory of the United States.64 Plaintiffs first argued that KBR’s conduct at Al Asad, particularly in rel ation to Gurung’s claim that he was subjected to forced labor there, qualified as a violation of the law of nations. 65 Thus, since Al Asad, by virtue of being an superseded Morrison’s “focus” test. Adhikari, 845 F.3d at 193; see also Kiobel, 569 U.S. at 124 –25; Morrison, 561 U.S. at 266. The Kiobel Court, given the facts before it, had no reason to explore how lower courts should evaluate claims involving domestic conduct that would prompt a domestic appl ication of the ATS, and thus, it had not provided any guidance to the lower courts on how to evaluate the “touch and concern” language. See Kiobel, 569 U.S. at 124–25; Adhikari, 845 F.3d at 194. The Fifth Circuit in Adhikari, however, reasoned that RJR Nabisco had made it clear that both Kiobel and Morrison were viable precedents to determining the domestic application of the ATS. Adhikari, 845 F.3d at 194; see RJR Nabisco, 136 S. Ct. at 2101. 62 Morrison, 561 U.S. at 266 –67 (explaining that the “focus” of a statute is generally understood to mean the specific conduct that Congress intended to outlaw with the passage of the statute or the purpose behind the passage of the statute); Adhikari, 845 F.3d at 194; see Kiobel, 569 U.S.at124– 25. See generally Doe v. Drummond, 782 F.3d 576, 592 (11th Cir. 2015) (taking the middle road in considering both Kiobel’s standards and Morrison’s “focus” test to determine whether the claim and the relevant conduct were both sufficiently centered in the United States to rebut the presumption against extraterritoriality and allow jurisdiction); Doe v. Nestle USA, Inc., 766 F.3d 1013, 1028 (9th Cir. 2014) (holding that the Kiobel Court did not intend to incorporateMorrison’s “focus” test, which aligns with the position advocated by the Plaintiffs in Adhikari). 63 Adhikari, 845 F.3d at 195. The Fifth Circuit distinguished between conduct underlying the claims alleged by the Plaintiffs and conduct that was relevant to the statute’s “focus.” Id. at 194. The court explained that whether the ATS applies domestically is determined by the location of the conduct relevant to the statute’s focus. Id. at 197. The court found that the ATS’s focus is the tort or the wrong committed in violation of the law of nations. Id.; see 28 U.S.C. § 1350. (2012). If that tort or wrong was committed in a foreign country, however, the case involved an impermissibleextraterrit orial application of the statut e, regardless of any other related conductthatmighthavetakenplacewit hin the territory of the United States. Adhikari, 845 F.3d at 197. 64 Adhikari, 845 F.3d at 197. Plaintiffs alleged that KBR violated thelawofnationsbyconspiring to traffic labo rers from Nepal and subjecting them to harsh conditions at Al Asad. Id. Given that these allegations occurred in Nepal, Jordan, and Iraq, the Fifth Circuit quickly dismissed them, as none of that conduct could support a domestic application of the ATS. Id. 65 See id. at 195. Plaintiffs claimed that KBR’s conduct at Al Asad was particularly relevant to Gurung’s claim that he was subject to forced labor on the military base and often put in dangerous situations with no protection. Id. Plaintiffs also contended that KBR’s conduct at Al Asad was releactive U.S. military base, was under the jurisdiction of the United States, KBR’s illegal conduct on the base should be actionable under the ATS. 66 Notwithstanding Gurung’s claim of forced labor, KBR argued instead that this was a matter of de jure sovereignty, i.e., Al Asad was not a U.S. territory because it was physically locate d in Iraq, a sovereign nation, and thus, was under the control of Iraq; therefore, even if the tortious conduct alleged by plaintiffs violated the law of nations, it could still not give rise to an actionable claim under the ATS since the conduct took place in Iraq. 67 The Fifth Circuit agreed with KBR and held that Plaintiffs had not met their burden to prove that the United States exercised control over Al Asad to such a degree and in such a manner that it could be characterized as a territory of the UnitedStates.68 Thus, KBR’s alleged illegal conduct against plaintiffs at Al Asad occurred within the jurisdi ction of Iraq and not the United States, and that conduct could not qualify as domestic conduct relevant for the purposes of Plaintiffs’ ATS claims.69 Plaintiffs next argument was that KBR wired money to Daoud using banks based in New York City, and that the employees of KBR based in Houston, Texas, were aware of the allegations of human trafficking at Al Asad, but were deliberately indifferent to them, and in some cases, even sought to cover them up. 70 This conduct certainly took place within the territory of the United States, but according to the Plaintiffs, also constituted as a violation of the law of nations.71 The Fifth Circuit, however, held that this conduct—providing financial support and being aware but indifferent to the allegations of human rights violations taking place at Al Asad—did not violate the law of nations, vant to the fact that the Deceased Plaintiffs had been subjected to international human trafficking. Id. The Fifth Circuit acknowledged that the district court below had found that there was a genuine di spute of material fact as to whether KBR knew that it was contracting with trafficked laborers during that time. Id. 66 Id. 2018] and therefore, it did not matter that this conduct took place within the territory of the United States.72 The Fifth Circuit reiterated that only a tort or a wrong committed in violation of the law of nations could be considered when dete rmining the “focus” of the ATS. 73 Here, because the torts committed in violation of the laws of nations —human trafficking and forced labor —occurred in a foreign country, the court was not allowed to consider any other conduct that may arguably have taken place within the territory of the United States.74 In sum, the Fifth Circuit found that none of the alleged tortious conduct on the part of either KBR or Daoud at Al Asad or within the territory of the United States was sufficient to displace the ATS’s presumption against extraterritoria lity.75 Therefore, the Fifth Circuit affirmed the district court’s decision to dismiss all of Plaintiffs’ claims under the ATS.76 C. The Dissenting Justices in Adhikari Argue for an Approach Similar to the Fourth Circuit’s Approach in Al-Shimari In 2014, in Al Shimari, the Fourth Circuit held that the claim brought against a Virginia-based military contractor by former detainees of the Abu Ghraib detention center in Iraq for abuse and torture “touch[ed] andnc-o cern[ed]” the territory of the United States with “sufficient force” to receive jurisdiction under the ATS. 77 The Fourth Circuit noted that the Supreme Court in Kiobel had explained that the plaintiffs’ claims must “touch and concern” the territory of the United States with adequate force to displace theATS’s pr esumption against extraterritoriality and not necessarily thealleged tortious conduct.78 This meant that the court was required to consider more than just the tortious conduct that violated the law of nations and the location of that conduct.79 Applying this fact -based inquiry that took into account all the pert inent allegations made by the plaintiffs, the Fourth Circuit rejected the idea that just because the alleged torture occurred in Iraq and not in the United States, 72 See id. 73 Id. The Fifth Circuit explained that the “focus” of the ATS was on conduct that violates international law, and if that conduct took place in a foreign territory, then the ATS did not apply even though there might have been other related conduct that occurred within the territory of the United States. Id. 74 Id. at 197–98. The Fifth Circuit also found that Plaintiffs had failed to show that there existeda clear link between KBR’s alleged financial transactions with Daoud and the Plaintiffs’ alleged international law violations. Id. at 198. Similarly, Plaintiffs’ contention that KBR’s Texas -based employees may have known about the allegations against Daoud or KBR overseas was not enough to find that those employees were directly complicit in violating the law of nations. Id. 75 See id. at 195–98. 76 See id. at 195–98, 207. 77 Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 520 (4th Cir. 2014). 78 Id. at 527; see Kiobel, 569 U.S. at 124–25. 79 Al Shimari, 758 F.3d at 527; see Kiobel, 569 U.S. at 124–25. the plaintiffs’ claim should be subjected to the same outcome as the plaintiffs’ claims in Kiobel.80 This same approach of using a fact-based inquiry to determine whether Plaintiffs’ claims sufficiently “touch[ed] and concern[ed]” the territory of the United States was also advocated by the dissenting opinion in Adhikari.81 Circuit Judge James E. Graves, Jr. wrote a dissent to the majority’s opinion, which he believed had effectively rendered Kiobel’s “touch and concern” standard meaningless.82 Although he conceded that the “focus” inquiry did rest on the alleged tortious conduct that violated international law, he advocated that the inquiry should involve consideration of all pertinent facts underlying the Plai ntiffs’ ATS claims, and not just the alleged tortious conduct and the location of that conduct.83 III. THE FIFTH CIRCUIT’S APPLICATION OF KIOBEL’S “TOUCH AND CONCERN” STANDARD AND MORRISON’S “FOCUS” STANDARD IS UNNECESSARILY RESTRICTIVE AND INCONSISTENT WITH THE SUPREME COURT’S ATS JURISPRUDENCE Section A of this Part argues that the Fifth Circuit in Adhikari v. Kellogg Brown & Root, Inc. conducted a very limited inquiry into the “focus” of the Alien Tort Statute (“ATS”) by only examining the location of KBR’s alleged tortious conduct, and not doing a broad fact -based inquiry into all the relevant 80 Al Shimari, 758 F.3d at 528. The Fourth Circuit applied a fact-based analysis and noted that plaintiffs’ allegations of torture were committed by American citizens, employed by an American corporation (CACI), whose corporate headquarters were in Fairfax County, Virginia. Id. The court also noted that the alleged tortious conduct in Iraq occurred at a U.S. military facility operated by United States government personnel; the employees who allegedly participated in the acts were hired by CACI in the United States to fulfill the terms of a contract between the United States Department of the Interior and CACI; and that the contract had been issued by a government office in Arizona. Id. at 528–29. Weighing these factors, the Al Shimari court unanimously held that the plaintiffs’ claims “touch[ed] and concern[ed]” the territory of the United States with “sufficient force” to displace the presumption against extraterritorial application of the ATS. Id. at 530. 81 See Adhikari, 845 F.3d at 207–210 (Graves, J., concurring in part and dissenting in part). 82 Id. at 208. 83 Id. at 209. Judge Graves was critical of the fact that the majority in Adhikari paid no heed to the identity and citizenship of the defendant, KBR, a U.S. corporation. Id. at 209–10. He also noted that the majority was incorrect in dismissing the fact that KBR was financially supporting Daoud using American banks, and that the employees of KBR located in Houston, Texas wereawareof KBR and Daoud’s questionable operations in Iraq, and had yet chosen to do nothing about it at all. Id. at 211–14. Finally, Judge Graves argued that the ATS was passed by the First Congress in response to the concerns it had about foreign relations. Id. at 210. Given that the statute’s purpose was to provide a forum for plaintiffs to litigate human rights abuses occurring abroad, Judge Graves believedthat the majority’s decision implicated both domestic and foreign interests of the United States, especially given that the alleged tortious conduct here took p lace on a U.S. military camp in Iraq. Id. at 211. He explained that although these policy considerations might not be dispositive to the extraterritorial application of the ATS in this case, it was still important for the Fifth Circuit to takethem intoaccount when determining the “focus” of the ATS. Id. facts that gave rise to the Plaintiffs’ claims.84 Section B argues that the Fifth Circuit’s application of the Kiobel v. Royal Dutch Petroleum Co. “touch and concern” test and the Morrison v. National Australia Bank Ltd. “focus” anal ysis in Adhikari undermines American foreign policy.85 A. The Fifth Circuit in Adhikari Conducted a Very Limited Inquiry into the “Focus” of the ATS by Only Examining the Defendant’s Alleged Tortious Conduct in the United States The basic disagreement regarding Kiobel’s “touch and concern” standard revolves around which facts should be taken into account when determining whether the ATS’s presumption against extraterritoriality has been displaced. 86 The position advocated by the Fifth Circuit in Adhikari looks only to con duct that is in violation of international law and the location of that conduct.87 In contrast, the approach advanced by the Fourth Circuit in Al Shimari v. CACI Premier Technology, Inc. calls for a broad, fact-based inquiry that takes into account all pert inent facts underlying a plaintiff’s claim, including but not li mited to, the defendant’s citizenship or presence in the United States, whether Congress intended that the action be heard in the United States’ courts,mi portant American foreign policy inter ests triggered by the nature of a defen d84 See infra notes 86–99 and accompanying text. 85 See infra notes 100–112 and accompanying text. 86 See Swaine, supra note 39, at 43 (noting how different courts have taken different approaches to quantify the level of relevant conduct in the United States necessary to overcome the ATS’s presumption against extraterritoriality). Compare Adhikariv.KelloggBrown&Root,Inc.,845 F.3d184, 195 (5th Cir. 2017) (applying a narrow “touch and concern” inquiry) , with Al Shimari v.CACIPremier Tech., Inc., 758 F.3d 516, 530– 31 (4th Cir. 2014) (advocating for a broad, fact -based inquiry that considers all pertinent facts underlying a plaintiff’s claim to determine the “focus” of the plaintiff’s claims). 87 Adhikari, 845 F.3d at 195. In this scenario, if a court finds that all relevant conduct related to the plaintiffs’ ATS claim occurred within the United States, there would be no issue about the ATS’s extraterritorial application; however, if a court finds that none of the relevant conduct occurred within the United States, it is likely that the plaintiffs’ claims will be barred entirely under the ATSS.ee Swaine, supra note 39, at 42 (noting that the extremes of what level of conduct is relevant to displace the presumption against extraterritoriality is easy to address). Justice Alito, in his concurring opinion in Kiobel v. Royal Dutch Petroleum Co., said that the conduct occurring within the territory of the United States must on its own be sufficient to establish a claim under the ATS, thereby making any conduct that took place outside the United States essentially irrelevant to the inquiry.See 569 U.S. 108, 126 (2013) (Alito, J., concurring). Justice Alito’s approach, however, would not onlycompletely disregard any tortious activity happening in a foreign nation regardless of whether the claims “touch[ed] and concern[ed]” the territory of the United States, but also subvert piracy claims on the high seas—one of the original international law violations considered by the First Congress when enacting the ATS—that technically do not fall within the physical territory of the United States. See Swaine, supra note 39, at 43 (explaining that even if all piracy claims were allowed to proceed under the ATS, it would be out of line to suggest that any analogous crimes would be entirely excluded from the scope of the statute). ant’s conduct, the nationality of the defendant’s employees, and the “focus” of the plaintiff’s claims. 88 The Fifth Circuit in Adhikari should have adopted and applied the approach taken by the Fourth Circuit in Al Shimari and taken note of the fact that KBR is a U.S. corporation, domiciled within the territory of the United States, when determining whether Plaintiffs’claims “touche[ed] and concern[ed]” the U.S. territory.89 Furthermore, it should have taken into account the evidence put forth by Plaintiffs of U.S.- based conduct by KBR that illustrated its parti cipation in this transnational trafficking scheme. 90 Specifically, the Fifth Circuit should have considered the evidence that KBR was wiring money to Daoud from the United States through banks located in New York. 91 This kind of financial support was made possible due to the subcontract signed between KBR and Daoud, which was done in the presence of KBR’s employees based in Houston, Texas. 92 The Fifth Circuit was sho rt-sighted to find that none of this evidence showed a direct link between KBR’s U.S. operations and the alleged international law violations taking place at the hands of KBR’s subcontractor, Daoud, based inAlAsad. 93 After all, it is not too much of a stretch to infer that providing financial support to a group engaged in human rights violations, 88 See Al Shimari v. CACI Premier Tech ., Inc., 758 F.3d 529 –31 (4th Cir. 2014). With respect to the “focus” approach, the Eleventh Circuit has seemingly taken the view that the extraterritorial pr esumption will not be overcome if the relevant conduct alleged is not sufficiently “focused within the United States.” Baloco v. Drummond, 767 F.3d 1229, 1236–38 (11th Cir.2014). Thisapproach,ho wever, misconstrues the Kiobel decision. Id. Although the location of the relevant conduct may be one consideration with respect to the “touch and concern”niquiry, it alone is not dispositive.See Al Shimari, 758 F.3d at 530 –31. Some other lower courts have also cited facts about theparties —suchas the U.S. nationality of the defendant, or its domicile or residency in the United States —to determine whether the claims “touch and concern” the United States or, alternatively, bear on the “focus” of the ATS. See, e.g., Mujica v. AirScan Inc., 771 F.3d 594 (9th Cir. 2014) (noting that a defendant’s citizenship and corporate relationship with the United States could be one factor that might “touch and concern” the territory of the United States with adequate force to displace the ATS’s presumption against extraterritoriality); Doe v. Drummond, 782 F.3d 576, 596 (11th Cir. 2015) (finding that the citizenship or corporate status of the defendant is relevant to the “touch and concern” inquiryset forth in Kiobel); Doe I v. Exxon Mobil Corp., No. 01 -1357(RCL), 2015 WL 5042118, at*7(D.D.C.July6, 2015) (holding that corporate citizenship alone was not enough for ATS jurisdiction). Butsee Warfaa v. Ali, 811 F.3d 653, 660 –61 (4th Cir. 2016) (noting that nothing in this case involved Americans, the American government or any events concerning the United States, but also suggesting that just because the defendant happens to be located in the United States does not mean that it should be a factor to be considered for the purpose of ATS); Mastafa v. Chevron Corp., 770 F.3d 170, 188 (2d Cir. 2014) (disagreeing with the contention that a defendant’s U.S. citizenship has any relevance to the jurisdictional analysis). 89 See Adhikari, 845 F.3d at 209 (Graves, J., dissenting) (pointing out the majority’s failure to consider the U.S. corporate status of KBR); Al Shimari, 758 F.3d at 528. 90 See Adhikari, 845 F.3d at 211– 12 (Graves, J., dissenting) (pointing out the majority’s failureto acknowledge and give credit to Plaintiffs’ evidence that KBR’s U.S. -based conduct implicated it under the ATS). 91 Id. at 212. 92 Id. 93 Id. both human trafficking and forced labor, in the Middle East makes one co mplicit in the successful operation of that scheme.94 The Fifth Circuit also refused to consider the evidence put forth by Plai ntiffs that implicated the U.S. -based employees who allegedly knew about the actions of Daoud and KBR at Al Asad, but chose to turn a blind eye towards it.95 The district court in Adhikari did note in a footnote that Plaintiffs’ most harmful evidence was the fact that one of KBR’s U.S. -based employees term inated a consultant based atAl Asad after he complained about Daoud’s actions on the military base against laborers such as Gurung. 96 This was in fact not the only complaint of abuses at Al Asad that reached KBR’s U.S.- based employees, and thus, it is very dubious to think that these employees were not aware of what was going on at AlAsad. 97 By affirming the district court’s decision to dismiss Plaintiffs’ claims under theATS, the Fifth Circuit failed to consider that a reasonable jury could have possibly found that KBR’s U.S.-based employees knew about these human rights abuses taking place at Al Asad, but either willfully ignored them or, in some cases, actively sought to cover up on behalf of the key perpetrator, Daoud. 98 Consequently, the decision by the Fifth Circuit not to consider any of this additional evidence in determining whether Plaintiffs’claims “touch[ed] and concern[ed]” the U.S. territory was premature and against the weight of ATS jurisprudence thus far. 99 B. The Fifth Circuit’s Application of Kiobel’s “Touch And Concern” Standard and Morrison’s “Focus” Standard in Adhikari Undermines U.S. Foreign Policy The most pressing concern about the Fifth Circuit’s near-sightedness in Adhikari is the foreign policy ramifications of a decision that declines to hold accountable perpetrators of crimes in violation of international law.100 These foreign policy concerns are particularly troubling when KBR’s conduct points a clear finger at the United States military. 101 KBR was one of the largest mil itary contractors operating in Iraq, and the Fifth Circuit’s failure to provide the Plaintiffs with a forum to bring forth theirclaims of human trafficking and forced labor overseas undermines American policy against such practices.102 Military contractors are critical for the success of the U.S. military, and because their work is so intertwined with that of the military itself, they are often perceived as an extension of the military. 103 Given the evolving nature of warfare and the political motivation within the United States to outsource all nonessential military functions to private contractors, military subcontractors have been used in greater numbers in recent years. 104 In the case of Plaintiffs in Adhikari, the men were recruited from Nepal under the false pretense that they would be employed in hotels in Amman, Jordan, but in reality, their brokers always knew that these men were eventually contracted to work, against their will, in the U.S. military bases in Iraq. 105 Given the close relationship between KBR, Daoud, and the U.S. military, the Fifth Circuit’s decision in Adhikari is highly damaging to U.S. military interests and to the safety of military oper ations across the world.106 101 See id. at 211. 102 See id.; see also United Nations, Protocol to Prevent, Suppress and Punish Trafficking in Pe rsons, Especially Women and Children, Supplementing the UnitedNations ConventionAgainst Tran snational Organized Crime, Nov. 15, 2000, 2237 U.N.T.S. 319. Just a few years before the incident in Adhikari, the United States signed and ratified a treaty that asked all signatories to hold their citizens responsible for human trafficking. United Nations, United Nations Convention Against Transnational Organized Crime, Vol. 2346, No. A-39574 (2008), https://treaties.un.org/doc/Publication/UNTS/ Volume%202346/v2346.pdf[http://perma.cc/L8NQ-9B65] (explaining the obligations of theUnited States as signatory to the treaty); OFFICE TO MONITOR & COMBAT TRAFFICKING IN PERSONS, U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 19 (2006), http://www.state.gov/documents/ organization/66086.pdf [http://perma.cc/2X8H-6Q4P] (summarizing the Department of Defense’s investigation and response to labor trafficking in Iraq). 103 Adhikari, 845 F.3d at 211. 104 Amy Kathryn Brown, Baghdad Bound: Forced Labor of Third- CountryNationalsinIraq ,60 RUTGERS L. REV. 737, 746 (noting that although the Vietnam War only involved the participation of about 9,000 civilians, the recent Balkan Wars of the 1990s involved close to 12,000 contractor employees, which surprisingly outnumbered the number of military personnel on the ground). The Uni ted States’ invasion of Iraq provided for several lucrative opportunities for military subcontractors. Id. at 748 (illustrating Halliburton as an example and explaining that despite reports of mismanagement, Halliburton received more than $4 billion in contract work from the Department of Defense in 2003). In fact, as of 2006, Halliburton’s then- subsidiary KBR had outsourced most of i ts $12 billioncontract with the U.S. military in Iraq to many subcontractors that were based in countries that were already struggling to contain human rights abuses, including human trafficking, within their own borders. Id.; Cam Simpson, Iraq War Contractors Ordered to End Abuses, CHI. TRIB., Apr. 24, 2006, at 3 (explaining that KBR had outsourced most of the U.S. military work in Iraq to sub-contractors in the Middle East, and that about 70% of the people employed were nonA-merican citizens hired from outside Iraq). 105 See Adhikari, 845 F.3d at 190–93 (reciting facts of the case). 106 See id. at 210–13 (Graves, J., dissenting) (noting that the majority fails to understand the i mplications of not holding U.S. military contractors liable for human rights abuses abroad). The majority in Adhikari summarily dismissed any and all concerns about the foreign policy ramifications of their decision. 107 Their reasoning, however, not only completely frustrates the purpose for which theATS was enacted, it also makes the statute somewhat superfluous given the current international political climate.108 At the time that the ATS was passed, the First Congress only imagined three violations of international law that, in their opinion, would ever require redress under the ATS—piracy, violations of safe conduct, and offenses against ambassadors. 109 Although courts today have expanded this list to include contemporary violations of international law, the decision in Adhikari appears to not understand the sophisticated nature of transnational crime today1.10 Most modern-day violations of international law, like we saw iAndhikari and Al Shimari, are perpetrated through a coordinated and concerted effort made by several players across the world, incl uding those who recruit, those who finance, 107 See id. at 198 (majority opinion) (explaining that the presumption against extraterritoriality applies regardless of any risk of conflict between the American statute and a foreign law). 108 See id. (explaining that contractors provide cruc ial support to the U.S. military at many active war zones, so much so that they are often considered to just be an extension of the U.S. military itself); see also Anthony J. Bellia Jr & Bradford R. Clark, The Alien Tort Statute and the Law of Nations, 78 U. CHI. L. REV. 445, 515 (2011) (explaining that by passing the ATS, the First Congress ensured that aliens would have at least one forum to litigate their claims for violation of international law). 109 See Judiciary Act of 1789, ch. 20, §§2–4, 1 Stat. 73, 73–75; see also Sosa v. AlvarezMachain, 542 U.S. 692, 724 (2004) ( explaining that the jurisdictional grant of the ATS was initially limited to only three violations of international law —piracy, violations of safe conduct, and offenses against ambassadors). It is true that the ATS was initially adopted by the First Congress to make sure that the United States upheld its commitment to the law of nations. Bellia & Clark, supra note 108, at 515. At the time that the ATS was passed, sovereign nations were req uired to provideredresstoplai ntiffs that had been subjected to tortious conduct in at least three circumstances: first, when the viol ation occurred on domestic soil; second, when a citizen of that nation was responsible for perpetrating the violation; and third, when the wrongdoer sought to escape liability within the territory of the nation. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 402 (AM. LAW INST. 1987) (“Subject to [the reasonableness requirement of] § 403, a state has jurisdiction to pres cribe lawwithrespect to (1) (a) conduct that, wholly or in substantial part, takes place within its territory; (b) the status of persons, or interests in things, present within its territory; (c) conduct outside its territorythat has or is intended to have substantial effect within its territory; (2) the activities, interests,status,or relations of its nationals outside as well as within its territory . . . .”). It was understood that a failure to provide recourse in any of the above- mentioned circumstances implicated the nation as an accomplice in the violation. See Bellia & Clark, supra note 108, at 475 (explaining that a nation was responsible for providing redress from injuries caused by its citizens against foreigners). 110 28 U.S.C. § 1350 (2012); Judiciary Act of 1789, ch. 20, §9(b), 1 Stat. 73, 77. The original language of the ATS provided that “[the District Courts] shall also have cognizance, concurrent w ith the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.” Judiciary Act of 1789, ch. 20, § 9(b), 1 Stat. 73, 77. This kind of reasoning is incorrect because the First Congress, by choosing to adopt the language, “all causes where an alien sues for a tort only in violation of the law of nations,” intended to have the ATS encompass all kinds of intentional harm inflicted on an alien that would be in violation of international law. See Bellia & Clark, supra note 108, at 543 (explaining that this broader reading of the ATS more correctly represents what the First Congress intended regarding the applicability of the ATS). and those who turn a blind eye toward the abuse. 111 Consequently,theFifthCiircuit’s approach in Adhikari puts severe limits on the future of theATS,especially if courts continue to advocate for the understandnig that the ATS was never meant to apply to a modern subset of torts committed by a modern and sophist icated set of perpetrators in violation of the law of nations.112 CONCLUSION The Fifth Circuit’s approach in Adhikari to Kiobel’s “touch and concern” test was incorrect in its limited inquiry into the “focus” of the ATS. In this case, the Plaintiffs’ allegations implicated the United States and its military. Despite that, the Fifth Circuit engaged in a formulaic application of the Supreme Court’s ATS jurisprudence thus far, without acknowledging the policy implications of such a decision on American foreign relations and the United States’ standing in the world. The court should not have overlooked that the defendant, KBR, was an American corporation domiciled within the United States. Nor should it have ignored the fact that KBR and Daoud were receiving funds through wire transfers from New York- based banks, and that KBR’s e mployees in Houston, Texas were aware of the human rights ab uses taking place under KBR’s watch at Al Asad. The Fifth Circuit’s decision is contrary to the expectations of the First Congress and jeopardizes the future of the ATS. VASUNDHARA PRASAD Preferred Cite: Vasundhara Prasad, Comment, The Road Beyond Kiobel: The Fifth Circuit’s Decision in Adhikari v. Kellogg Brown & Root, Inc.and its Implications for the Alien Tort Statute, 59 B.C. L. REV. E. SUPP. 369 (2018), http://lawdigitalcommons.bc.edu/bclr/vol59/iss6/369. 111 See Adhikari, 845 F.3d at 190–93 (reciting facts of the case); Al Shimari, 758 F.3d at 520. 112 See Bellia & Clark, supra note 108, at 552 (noting that the ATS was passed to provide redress to aliens injured at the hands of Americans, and thus, satisfyA merica’s obligations under internationallaw). 35 See, e.g., Drummond , 782 F. 3d at 592 holding that Kiobel demands the application of Morrison's “focus” test); Mastafa, 770 F.3d at 183 ( same); Doe v . Nestle USA , Inc., 766 F.3d 1013 , 1028 ( 9th Cir . 2014 ) (holding that Kiobel had not advocated for the adoption of Morrison's “focus test” because it deliberately used the words “touch and concern” to enunciate the circumstances that could rebut the ATS's presumption against extraterritoriality ); Al Shimari, 758 F.3d at 520 -21 (declining to adopt the “focus” test because Kiobel held that the plaintiff's claims, rather than the alleged tortious conduct, must “touch and concern” the territory of the United States with adequate force to displace the presumption against extraterritoriality, and thus, courts must not pick and choose facts, but rather acknowledge all the pertinent facts that give rise to the plaintiff's ATS claims) . 36 See RJR Nabisco, Inc. v. European Cmty., 136 S. Ct . 2090 , 2101 ( 2016 ). Even thoughRJR Nabisco involved the extraterritorial application of certain Racketeering Influenced and Corrupt O rganization Act provisions, the Court provided guidance regarding the extraterritorial application of domestic statutes in general, including the ATS . Id. 37 Id. 38 Id. 39 See id.; Edward T. Swaine , Kiobel and Extraterritoriality: Here, (Not) T here, (NotEven)Everywhere, 69 OKLA. L. REV. 23 , 43 ( 2016 ) (noting how different courts have taken different approaches to quantify the level of relevant conduct in the United States necessary to overcome the ATS's presumption against extraterritoriality) . Compare Adhikari ,845 F. 3dat195 (applyinga narrow“touch and concern” inquiry) , with Al Shimari , 758 F.3d at 530 -31 (advocating for a broad, fact-based inquiry that takes into account all pertinent facts underlying a Plaintiff's claim to determine the “focus” of the plaintiff's claims) . 40 See infra notes 43-56 and accompanying text. 67 Id. at 195- 96 . KBR's argument, if found to have merit, would defeat Plaintiffs' characterization of Al Asad as a U.S. territory, thus rendering the alleged conduct of KBR at Al Asad nondomestic for the purposes of Plaintiffs' ATS claims . See id. The Plaintiffs,inresponse,however,cited the Supreme Court's decision in 2004 in Rasul v. Bush , which suggested that a functionalinquirymay be applicable in these situations . 542 U.S. 466 , 470 - 75 ( 2004 ) (holding that the federal habeasstatute applied to persons detained at the United States Naval Base at Guantanamo Bay because the United States exercised complete jurisdiction and control over it ); Adhikari, 845 F.3d at 195 - 96 . The Fifth Circuit found, however, that the Supreme Court intended to limit its holding in Rasul to the habeas context . Adhikari, 845 F.3d at 196; see Rasul , 542 U.S. at 470-75. 68 Adhikari, 845 F.3d at 197 . The Fifth Circuit explained that for a military base to qualify as a U.S. territory, it was essential for the United States to intend to exercise controlover thatmilitarybase on a permanent basis. Id. In this case, the United States' use of Al Asad as a military base began in 2003 at the start of the Iraq War, and ended eight years later in 2011. Id. Given that the United States military did not have any intentions to stay at Al Asad permanently, the Fifth Circuit found that the military base did not qualify as a territory of the United States . Id. 69 Id. 70 Id. 71 Id. 94 Id. 95 Id. 96 See Adhikari v. Daoud & Partners , 95 F. Supp . 3d 1013 , 1021 n. 4 (S.D. Tex . 2015 ), aff'd sub nom . Adhikari v. Kellogg Brown & Root, Inc., 845 F.3d 184 ( 5th Cir . 2017 ), cert. denied, No. 16 - 1461 , 2017 WL 2463601 (U.S. Oct. 2 , 2017 ). Plaintiffs' most incriminating piece of evidenceagainst KBR was a decision by a U.S. -based employee of KBR to remove a consultant from Al Asad after he complained of the violations being committed by Daoud at Al Asad against the laborers recruited to work on the military camp . Adhikari , 95 F. Supp . 3d at 1021 n. 4 . It must be noted, however, that this evidence was undercut by the fact that the same U.S. -based employee, after removing the consultant from Al Asad, requested that initiation of an investigation into the complaints . Id. 97 See Adhikari , 95 F. Supp . 3d at 1021 n. 4 . The district court also noted that KBR in Houston had received other complaints from a U.S. Marine stationed at Al Asad regarding the treatment of workers on-site . Id.; see Adhikari , 845 F. 3d at 213 (Graves , J., dissenting). 98 See Adhikari , 845 F. 3d at 213 (Graves , J., dissenting). 99 See id . at 210-13. 100 See id . at 207-210 ( discussing how the majority was incorrect to summarily dismiss the foreign policy implications of its decision).


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Vasundhara Prasad. The Road Beyond Kiobel: The Fifth Circuit's Decision in Adhikari v. Kellogg Brown & Root, Inc. and its Implications for the Alien Tort Statute, Boston College Law Review, 2018,