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
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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,
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
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,
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
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
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.
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/
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.
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
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.
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
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
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
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
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.
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
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
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
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.
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.
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.
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).