New case on the Alien Tort Statute could result in the end of statute as we know it

As I reported a few weeks ago, the Supreme Court has agreed to review two cases on whether plaintiffs have a right to recover from corporations under the Alien Tort Statute and the Torture Victim Protection Act.  For more details, go here and scroll down to see multiple posts on the subject.

Now, a petition for certiorari has been filed with the court making a series of arguments clearly contrary to the majority trend among courts regarding other aspects of the application of the ATS.  Were the court to decide the case in favor of the petitioners, the result would essentially mean the end of the ATS as we know it.

The new case is Sarei v. Rio Tinto, PLC, a case that has been going up and down from the district court to the court of appeals (of the 9th circuit) for years.  In the most recent decision in the case, the Ninth Circuit voted (en banc) 7-4 to permit an ATS suit to proceed against a mining company accused of aiding and abetting the government of Papua New Guinea in violating the human rights of residents of the island of Bougainville.

The petition for certiorari, available here, lists the following issues:

1. Whether U.S. courts should recognize a federal common law claim under the ATS arising from conduct occurring entirely within the jurisdiction of a foreign sovereign, especially where the claim addresses the foreign sovereign’s own conduct on its own soil toward its own citizens.

2. Whether U.S. courts should recognize a federal common law claim under the ATS based on aiding-and-abetting liability, even absent concrete factual allegations establishing that the purpose of the defendant’s conduct was to advance the principal actor’s violations of international law.

3. Whether a plaintiff asserting a federal common law claim under the ATS addressed to conduct occurring entirely within the jurisdiction of a foreign sovereign must seek to exhaust available remedies in the courts of that sovereign before filing suit in the United States, as international and domestic law require.

4. Whether federal common law claims asserted under the ATS for violations of international human rights law norms may be brought against corporate entities.

None of these issues is new.  They have all been addressed by a number of courts in other cases, the vast majority of which have rejected the arguments of the petitoners.

Very recently, for example, in Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013 (7th Cir. 2011), Judge Posner concluded that the argument that plaintiffs must exhaust legal remedies in the nation in which the alleged violation of customary international law occurred "border[s] on the ridiculous" and that there is no basis for the argument that the statute has no extraterritorial application except to violations of customary international law that are committed on the high seas.  As Judge Posner points out, "Courts have been applying the statute extraterritorially (and not just to violations at sea) since the beginning; no court to our knowledge has ever held that it doesn’t apply extraterritorially; and Sosa [the only case on the ATS decided by the Supreme Court] was a case of nonmaritime extraterritorial conduct yet no Justice suggested that therefore it couldn’t be maintained. Deny extraterritorial application, and the statute would be superfluous . . ."

As to the second issue - on whether there can be a claim for aiding and abetting under the ATS - there is no doubt the established law recognizes the cause of action.  At one point in the past there was a debate as to whether the definition of aiding and abetting should be based on notions of national or international standards, but the clear trend now is to apply the international standard.  If the issue raised by the petitioners in Rio Tinto is merely whether the plaintiffs' allegation in the particular case actually meet the requirements of the standard, that's one thing, but if the petitioners are arguing that there should be no cause of action for aiding and abetting altogether, they are clearly swimming against the current.

Finally, the fourth issue is the one currently before the court in Kiobel.

Is it likely that the Supreme Court would decide a case in favor of petitioners making arguments that have been rejected by the majority of courts that have considered them?  It is not easy to say.  One thing I can say is that Justices Scalia and Thomas agreed in Sosa that the ATS should only be used to support claims based on the same type of conduct that had been recognized as supporting a claim when the statute was enacted in 1789, which did not include violations of human rights.  Unless they have changed their minds since then (2004), more than likely that's two votes against the plaintiffs' right there.