Court of Appeals Considers US Actions in Isolation to Determine whether Allegations Describe US Domestic Violation of International Law

The World in U.S. Courts: Spring 2017 - Alien Tort Statute (ATS)/Torture Victims Protection Act (TVPA)/Political Question Doctrine/Foreign Sovereign Immunity Act (FSIA)/ Act of State Doctrine

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Adhikari v. Kellogg, Brown & Root, Inc., US Court of Appeals for the Fifth Circuit, January 3, 2017

Twelve Nepalese men were attacked by Iraqi insurgents in Iraq in 2004 while working for a Jordanian corporation that was a subcontractor of the US defense contractor, Kellogg, Brown, and Root (KBR). The families of eleven of the victims and the attack’s lone survivor sued KBR under the ATS and TVPA, claiming that their employment constituted actionable human trafficking. The trial court had dismissed the claim on summary judgment, and in this opinion the Court of appeals affirms, finding the claims sought an impermissible extraterritorial application of both statutes.

As to the ATS claim, the Court of Appeals addressed the unsettled question of how to determine whether a claim based in part on non-US facts could be brought under the statute (as well as any other federal laws found not to have extraterritorial effect). In such case, the US Supreme Court has directed lower courts to determine the “focus” of the statute, and in light of that determination whether the claims at issue “touch and concern” the US with “sufficient force” to displace the presumption against extraterritoriality. In this case, the Court of Appeals concludes that the exclusive concern of this inquiry is conduct relevant to the “focus” of the statutes involved, and if none of the alleged conduct occurred within the US, no claim could be brought.

This proved to be the case as to most of the allegations. The only actions allegedly taken by KBR in the US were payments through a New York bank to one of the defendants, and decisions made by US-based KBR employees who “may have known” allegations of human rights abuses outside the country. The Court of Appeals found that neither of these allegations described actions that “by themselves” showed that KBR’s US-based employees actually committed the alleged human rights abuses or should otherwise be found to be parties to conduct that occurred outside the US.

The issue with respect to the TVPA was different and more limited: Whether a 2008 amendment to the TVPA that expressly permitted certain extraterritorial claims to apply governed the case at bar. The Court of Appeals found that the amendments applied only to conduct occurring after the date of their enactment, and was thus inapplicable to bring the allegations of the complaint within the scope of the statute.

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