Paul Hoffman of Schonbrun DeSimone Seplow Harris Hoffman &
Harrison is counting on pirates to save his clients, a group of
Nigerian nationals suing Shell under the Alien Tort Statute for
allegedly abetting state-sponsored torture and murder in
Nigeria. And given the interest in piracy that the U.S. Supreme
Court displayed on Monday, when Hoffman and Shell counsel
Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivanpresented oral arguments on whether the ATS gives victims of overseas
atrocities the right to sue in U.S. courts, Hoffman may have
been prescient in playing the pirate card.
As you probably recall, this was the second trip to the
Supreme Court for Hoffman, Sullivan and the case known as Kiobel
v. Royal Dutch. The justices heard arguments last year on
whether corporations can be sued under the ATS, then quickly
decided they wanted answers to the much broader question of
whether the law, passed in 1789, applies to conduct that took
place outside of the borders of the United States. In the brief Hoffman filed in June on behalf of the Nigerians, he argued that
Congress enacted the law to establish federal-court jurisdiction
over (among other things) piracy cases, which, by definition,
occur offshore. So Congress cannot have intended to limit the
reach of the Alien Tort Statute to conduct within the borders of
the United States. "Piracy, one of the paradigmatic ATS claims,
clearly occurs extraterritorially," Hoffman wrote. "The ATS was
enacted to enforce the law of nations, which was, and is, not
limited to U.S. territory."
The Supreme Court seemed to agree that Congress intended the
Alien Tort Statute to apply to piracy on the high seas in the
2004 ruling that established the ATS as a vehicle for human
rights litigation, Sosa v. Alvarez-Machain. Sosa held that
piracy was generally accepted to be a violation of one of the
"international norms" Congress meant to encompass when it
enacted the law in the 18th century. On Monday, even Justice
Antonin Scalia, who made clear his aversion to the presumption
of extraterritoriality in his 2010 opinion in Morrison v. National Australia Bank, pressed Shell counsel Sullivan on
whether a law that applies on the high seas doesn't apply on
foreign soil.
That's when Sullivan offered a hard-line answer that sent
the justices into a pirate cove for the next several minutes:
"We don't concede that the statute applies on the high seas,"
she said.
Scalia said he was glad to hear it, but Chief Justice John
Roberts seemed to be taken aback. "I thought that was the most
clear violation of an international norm," he said. "The one
thing that the civilized countries would agree on (in 1789) is
that you ... capture pirates." Then Justice Stephen Breyer
chimed in. If the justices agreed that the law was passed in
part to provide a federal-court cause of action against pirates,
he said, "the question to me is who are today's pirates. And if
Hitler isn't a pirate, who is? And if, in fact, an equivalent
torturer or dictator who wants to destroy an entire race in his
own country is not the equivalent of today's pirate, who is?"
The United States has signed treaties that establish universal
jurisdiction for violations of international laws, Breyer said.
So why shouldn't U.S. courts accept that jurisdiction?
Sullivan replied that the United States actually hasn't
agreed to universal jurisdiction, a point Scalia seconded. But
Scalia returned to his question about the ATS and piracy on the
high seas. "You appeal to the general principle of
territoriality of our laws," Scalia said. "And, as I say, I
don't know any other case where that principle allows our
securities laws to be applied on the high seas, for example ...
even though they can (not) apply in Australia." (That's a
Morrison reference, in case you didn't pick it up.)
Sullivan attempted to broaden the discussion to the general
principle that U.S. courts should not adjudicate conduct on
foreign soil, but Justice Samuel Alito dragged her back onto the
pirate ship. "Can I ask this about piracy?" he said. "In 1789,
do you think that Congress was contemplating tort actions
against pirates in courts of the United States?"
Sullivan said no, that the United States typically brought
in rem actions to recover property stolen by pirates. And in the
court's 1818 opinion in United States v. Palmer, Sullivan said,
the justices established that vessels sailing under a foreign
flag are subject to the jurisdiction of their homeland. "So we
would argue that the presumption against extraterritoriality
actually applied in the founding era even to piracy," she said.
After Sullivan had a chance to explain that even if the ATS
was intended to apply to conduct on the high seas, which are
stateless, U.S. jurisdiction runs out when you hit another
nation's shores, Justice Sonia Sotomayor took one more cannon
shot at the pirates-in-federal-court issue. "I know that you
quarrel about whether an act of piracy qualifies as an
international norm, but assuming that I accept it is, pirates
could have been -- under your theory, pirates could have been
sued in state court, too, yet Congress found it important to
pass the ATS," Sotomayor said.
Sullivan responded that all early litigation under the Alien
Tort Statute involved conduct on U.S. shores or in U.S. waters,
which led to some discussion about a 1795 advisory opinion
issued by then attorney general William Bradford. Bradford was
addressing an incident in which American citizens joined forces
with a French fleet off the west coast of Africa to plunder the
property of "British subjects on that coast." Bradford said the
victims of the incident could sue in U.S. courts under the Alien
Tort Statute. The Kiobel plaintiffs cited the opinion's phrase
"on that coast" to argue that Bradford understood the ATS to
apply to overseas conduct, but Sullivan said that, at best, the
Bradford opinion involved conduct by an American on the high
seas, so it didn't overcome the presumption against
extraterritoriality.
Will Sullivan's hard line on piracy and the Alien Tort
Statute turn out to be a mistake? Clearly, the justices were
intrigued by the question of whether a law that applies on the
high seas does not extend to foreign shores; five of the nine
justices engaged with Sullivan about pirates. The court was also
surprised by Sullivan's argument that the ATS doesn't imply a
cause of action for piracy, and both Breyer and Sotomayor seemed
troubled by that assertion. (Scalia, on the other hand, was
delighted by it.) Breyer's musing on whether modern-day
autocrats might justifiably be compared to 18th-century pirates
-- thus implying that if the ATS was meant to provide a
federal-court forum for piracy cases, it must similarly apply to
cases against modern tyrants -- is certainly intriguing, but it
remains to be seen whether it sways anyone on the court who's
not already inclined to permit federal-court suits stemming from
overseas conduct.
(Reporting by Alison Frankel)
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