On March 21, 2014, CJA authored and submitted a brief to the U.S. Court of Appeals for the Eleventh Circuit in Balcero v. Drummond Company, Inc., a case filed by our partners at International Rights Advocates (IRA) on behalf of several Colombian plaintiffs. The complaint set forth Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA) claims against Drummond and several of its corporate officers for aiding and abetting crimes against humanity committed by paramilitary forces in Colombia.
Originally filed in 2009, the complaint alleged that the Alabama-based coal company Drummond joined forces with the United Self-Defense Forces of Colombia (“AUC”) to drive suspected guerillas out of the areas of Drummond’s Colombian mining operations. Plaintiffs claimed that in exchange for Drummond’s substantial financial and logistical support, it’s intelligence, and access to the mining property and grounds, the AUC would drive any guerilla forces out of the area. Fulfilling its side of the bargain, the AUC terrorized towns along the rail line that transported Drummond’s coal from its mine in La Loma to its port near Ciénega, killing hundreds of innocent civilians and using Drummond fundings to escalate the long-standing civil conflict.
More background on the case is available on the website of CJA partner International Rights Advocates (IRAdvocates).
The Issue on Appeal
On July 25, 2013, Judge David Proctor of the Northern District of Alabama dismissed all ATS claims against the defendants on a reading of Kiobel v. Royal Dutch Petroleum that would categorically bar ATS claims based on human rights violations occurring outside of the U.S. territory. The court also dismissed the TVPA claims against the corporate officer defendants, finding that international law does not hold corporate officers liable for violations committed by their subordinates.
CJA’s Amicus Brief: The Survivor’s Perspective
On March 21, 2014, CJA and pro bono co-counsel at Fox Rothschild LLP filed an amicus brief with the Eleventh Circuit Court of Appeals in support of the Balcero plaintiffs’ appeal. Representing the perspective of survivors who have won ATS cases against individual perpetrators, our brief was filed on behalf of CJA clients and Dolly Filártiga, lead plaintiff in the landmark case Filártiga v. Pena-Irala.
Like our previous brief in Al Shimari v. CACI, our brief in Balcero argues that Kiobel does not impose a bright-line rule barring all ATS claims involving extraterritorial conduct, as the trial court erroneously held. Rather, it references a presumption against the extraterritorial application of U.S. law, which may be overcome when claims “touch and concern” the United States with “sufficient force.” Whether the presumption is displaced as to any given claim requires a full factual analysis. Specifically, we argued, Kiobel requires that a trial court confronted with an ATS claim make a determination with respect to two threshold questions: first, whether the claim is in fact based on conduct that took place outside the territory of the United States, and second, if the answer is affirmative triggering the presumption against extraterritoriality, whether the presumption is displaced by the aggregate of facts that “touch and concern” the United States with “sufficient force.”
We proceeded to argue that certain types of claims based on extraterritorial conduct do overcome the Kiobel presumption. First, the presumption against extraterritoriality is overcome when the defendant is a U.S. resident: the United States has long demonstrated an interest in denying safe haven to human rights abusers. Second, ATS claims brought in U.S. courts should proceed when no alternative forum is available: absent competing claims of jurisdiction, there is less risk of international discord. Finally, ATS claims should be heard when they arise from the same set of facts as other well-pleaded claims with extraterritorial reach, such as TVPA claims.
In short, we reasoned that the district court’s categorical bar would short-circuit the Supreme Court’s agreed-upon framework for addressing ATS cases, and substitute an approach that did not win a majority vote of the Justices (i.e., the approach set forth in Justice Alito’s concurrence). Were such a decision generalized, it would have barred most ATS suits brought in the past 30 years, including those in which our clients and hundreds of other victims of human rights abuses found their abusers here in the United States, taking advantage of the protections of our laws, yet claiming immunity from the scrutiny of our courts.
On March 25, 2015, a panel of the 11th Circuit affirmed the trial court’s dismissal of the plaintiffs’ ATS and TVPA claims. In many respects, the court agreed with CJA’s proposed legal standard and construed the Supreme Court’s Kiobel opinion as requiring a multi-factor analysis to determine whether an ATS claim “touches and concerns” the territory of the United States.
Echoing CJA’s arguments, the court acknowledged that several factors are relevant to the “touch and concern” test, including (1) the citizenship or corporate status of the defendant, (2) whether important U.S. interests are affected by the defendant’s conduct, and (3) whether the defendant’s conduct occurred in whole or in part within U.S. territory.
However, applying this test to the facts in Balcero, the court found that there was still an insufficient nexus to the United States. In particular, the court noted that the plaintiffs failed to make allegations of specific, domestic conduct that directly aided and abetted abuses committed abroad. Even if such conduct touched and concerned the U.S., it did not do so with sufficient force to displace the Kiobel presumption.
The court’s decision left open the possibility that other cases involving abuses committed overseas could meet the “touch and concern” test – given a sufficient strong tie to the U.S. But for the plaintiffs in Balcero, who suffered egregious wrongs, that possibility provides little relief.