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In lawsuit brought by more than 4,000 Colombian victims of paramilitary forces that received support from Chiquita banana company, Eleventh Circuit dismisses based on the Alien Tort Statute's presumption against extraterritoriality.

Cardona v. Chiquita Brands International is a class-action suit brought on behalf of approximately 4,000 victims of state-sponsored terrorism in Colombia. The plaintiffs brought their suits based on the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA). Chiquita plead guilty in 2007 to funding the Colombian paramilitary--and former terrorist--organization, the Autodefensas Unidas de Colombia (AUC) (United Self-Defense Forces of Colombia), and other guerrilla groups during Colombia's civil war.

Chiquita made at least 100 payments between 1997 and 2004 to the AUC. The paramilitary coalition of narco-traffickers has been responsible for the rape, torture, murder, disappearance, and forced displacement of hundreds of thousands of Colombians. The company paid AUC for security services, disguising the payments as accounting. Chiquita did all this against the express warnings of its attorneys and with the repeated and express authorization of the highest ranking executives at its Ohio headquarters.

Chiquita continues to dispute the nature of its dealings with the AUC. Its representatives insist that AUC was extorting payments from the company. But, beyond dispute, the paramilitary atrocities did further the company's interests. According to the National Union School (ENS), 668 members of Colombia's largest banana workers union were murdered between 1991 and 2006. By way of comparison, between 1999 and 2005, the rest of the world combined saw 314 similar killings of union members.

Bananas were not the only business that thrived under the AUC's watch. The group moved cocaine and weapons through the same ports that fed U.S. demand for bananas. In November 2001, two months after the AUC was designated a terrorist group, Chiquita facilities were used to bring 3,400 AK-47 assault rifles and five million rounds of ammunition into the country from AUC trafficking partners in Nicaragua.

In 2007, Chiquita settled with the U.S. Justice Department for $25 million. During the period its conduct violated U.S. anti-terror law, Chiquita brought in $49.4 million--almost twice the penalty fee--from its Colombian holdings alone, according to the Justice Department. In 2005, the company informed its shareholders that it had sold those assets, its most valuable, for roughly $40 million, while also keeping distribution rights to the bananas they produced.

Chiquita has never faced prosecution in Colombia, where the AUC's political and economic support networks remain largely intact. And neither Chiquita nor the U.S. government--which has sent billions to the Colombian military, in full knowledge of its extensive paramilitary ties and abysmal human rights record--has since made any attempt to compensate the millions of Colombian victims.

The suits allege that in 1997, Chiquita entered an agreement with the AUC in order to pacify the banana plantations amidst increasing activity by left-wing guerrilla groups. Between 1997 and 2004, Chiquita paid the AUC more than $1.7 million in regular monthly payments listed in books and records as "security services," according to the suits.

The U.S. government designated AUC as a terrorist organization on Sept. 10, 2001, but Chiquita continued to make hundreds of thousands of dollars in secret payments to the group over the next three years, against the advice and wishes of outside counsel and board members.

The U.S. filed charges against Chiquita in 2007, and the company was fined $25 million after pleading guilty to violating federal anti-terrorism laws by doing business with a foreign terrorist organization, the petition states.

Following Chiquita's settlement with the U.S. government, family members of individuals harmed by Colombian paramilitary groups during the civil war used the ATS to sue Chiquita in U.S. court. The plaintiffs claimed that Chiquita's payments to the AUC and other groups aided and abetted extrajudicial killings, torture, forced disappearances, crimes against humanity and war crimes committed by Colombian paramilitaries. Chiquita filed motions to dismiss. The District Court denied the motions to dismiss, however, the court granted defendants' motion for certification of certain controlling questions for interlocutory review under 28 U.S.C. [section] 1292(b). Pursuant to the authority of that certification, Chiquita timely petitioned this court for permission to appeal. The Court granted that petition.

The key issue here is whether the ATS applies extraterritorially.

The plaintiffs asserted this court's jurisdiction under the Torture Victims Protection Act and the Alien Tort Statute. However, just a few weeks after the entry of the certification order in this case, the Supreme Court announced its decision in Mohamad v. Palestinian *1189 Authority,_U.S. _, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012). Furthermore, during the pendency of this appeal, the Supreme Court has also acted with respect to the ATS with its decision in Kiobel v. Royal Dutch Petroleum Co.,_U.S._, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013).

"[...] In Mohamad, a unanimous Court held that the TVPA "authorizes liability solely against natural persons." _ U.S. at _, 132 S.Ct. at 1708. The defendant-appellants are Chiquita Brands International, Inc., and Chiquita Fresh North America, LLC. Neither is a natural person. The claims under the TVPA must be dismissed."

"In Kiobel v. Royal Dutch Petroleum Co., _U.S._, 133 S.Ct. 1659, 185 L.Ed.2d 671 (2013), the High Court considered a case in some ways parallel to the one before us. The Kiobel plaintiffs sued a corporate defendant under the ATS, alleging the cooperation of the corporation with the government of Nigeria in the commission of torts allegedly within the compass of that statute. The statute provides that 'the 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.' 28 U.S.C. [section] 1350. The Kiobel plaintiffs alleged acts committed by Nigeria and the corporate defendant 'in violation of the law of nations' in the territory of Nigeria. Kiobel, 133 S.Ct. at 1663. Similarly, plaintiff-appellants in this case alleged acts by Chiquita in conjunction with paramilitary actors within the territory of Colombia."

In disposing of the claims in this case the Court applied the conclusion of the Kiobel Court, which states:

"We therefore conclude that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption.'[T]here is no clear indication of extraterritoriality here,' and petitioners' case seeking relief for violations of the law of nations occurring outside the United States is barred."

_U.S. at _, 133 S.Ct. at 1669 (quoting Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247, 264, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010)).

"The Court noted in Kiobel that 'all the relevant conduct took place outside the United States.' Id. All the relevant conduct in our case took place outside the United States. The Court further noted that 'even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.' Id."

"Plaintiff-appellants attempt to anchor ATS jurisdiction in the nature of the defendants as United States corporations. Corporate defendants in Kiobel were not United States corporations, but were present in the United States. The Supreme Court declared that '[corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.'Id. The distinction between the corporations does not lead us to any indication of a congressional intent to make the statute apply to extraterritorial torts. As the Supreme Court said in Kiobel, '[i]f Congress were to determine otherwise, a statute more specific than the ATS would be required.' Id. There is no other statute. There is no jurisdiction."

The Court then turns to address to the dissenting colleague.

"The short answer to her concerns is expressed in the application of Kiobel to the facts of this case. Any tort here, whether styled as torture or under some other theory, occurred outside the territorial jurisdiction of the United States. The ATS contains *1190 nothing to rebut the presumption against extraterritoriality. We further observe that to apply the ATS to the allegations before us would be inconsistent with the Supreme Court's earlier holding in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). Sosa makes it clear beyond cavil that the ATS created no causes of action but is purely jurisdictional. '[A]t the time of enactment the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law.' Id. at 712, 124 S.Ct. 2739. [...]"

"As recognized by the Sosa Court, '[i]n the years of the early Republic, this law of nations comprised two principal elements:' (1) 'the general norms governing the behavior of national states with each other' (executive and legislative in nature), and (2) 'judge-made law regulating the conduct of individuals situated outside domestic boundaries and consequently carrying an international savor' (which are, according to Blackstone, mercantile questions arising from the customary practices of international traders and admiralty). 542 U.S. at 714-15, 124 S.Ct. 2739. Additionally, the Sosa Court noted that '[t]here was ... a sphere in which these rules binding individuals for the benefit of other individuals overlapped with the norms of state relationships' (Blackstone mentioned three in specific: 'violation of safe conducts, infringement of the rights of ambassadors, and piracy'). Id. at 714-15, 124 S.Ct. 2739 (citing 4 W. Blackstone, Commentaries on the Laws of England 68 (1769))."

"Nothing in the complaint before us falls within Blackstone's three categories. It is true that a majority of the Supreme Court recognized the possibility that a court might recognize a cause of action outside the law of nations as it existed at the time of the enactment of the ATS, but the Court emphasized 'that a decision to create a private right of action is one better left to legislative judgment in the great majority of cases.' Id. at 727, 124 S.Ct. 2739. Therefore, the Court found itself 'reluctant to infer ... a private cause of action where the statute does not supply one expressly.' Id. Even aside from the presumption against extraterritoriality--not overcome by the allegations before us--Sosa counsels against recognizing a tort not previously recognized as within ATS jurisdiction."

The Eleventh Circuit's interpretation of the Kiobel decision was at odds with a recent articulation of the law by the Fourth Circuit Court of Appeals in Al Shimari v. CACI. There, the Fourth Circuit held that, where individuals in the U.S. approved conduct that violated international law abroad, victims of that conduct could use the ATS to sue the individuals who approved it (or their employer).

"It is true, as our colleague declares, that at least one circuit in a case decided long before the Supreme Court spoke in Sosa or Kiobel did conclude that extraterritorial torture fell within the law-of-nations category of the ATS. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980); see also Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 2014 WL 2922840 (4th Cir. June 30, 2014). However, this is by no means a unanimous conclusion of the circuits. In Saleh v. Titan Corp., 580 F.3d 1 (D.C.Cir. 2010), the District of Columbia Circuit rejected the claim that acts of abuse and torture inflicted upon Iraqi national detainees by private government contractors working for the United States military in Iraq violated settled norms of international law and thus were actionable under the ATS."

"The Saleh court noted that '[a]lthough torture committed by a state is recognized as a violation of a settled international norm, that cannot be said of private actors.' Id. at 15. Saleh, unlike Filartiga, came after the Supreme Court's pronouncements *1191 in Sosa. That same circuit reached a similar conclusion in Ali v. Rumsfeld, 649 F.3d 762 (D.C.Cir.2011). Even before the Sosa decision, in Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C.Cir.1985), that court held that actions taken by executive officials, in their private capacity, supporting forces bearing arms against the government of Nicaragua did not violate any treaty or 'customary international law' so as to confer original jurisdiction of a suit under the ATS. Id. at 206."

"Again, we reiterate that the ATS does not apply extraterritorially. The torture, if the allegations are taken as true, occurred outside the territorial jurisdiction of the United States. As we emphasized above, to the extent the possibility of an exception to the presumption against extraterritoriality exists, the Kiobel Court made it clear that such exception could occur only, if at all, "where the claims touch and concern ... the United States ... with sufficient force to displace the presumption against extraterritorial application." Kiobel, _ U.S. at _, 133 S.Ct. at 1669. There is no allegation that any torture occurred on U.S. territory, or that any other act constituting a tort in terms of the ATS touched or concerned the territory of the United States with any force."

"Finally, we consider our colleague's humane observation that 'the United States would fail to meet the expectations of the international community were we to allow U.S. citizens to travel to foreign shores and commit violations of the laws of nations with impunity.' Even assuming the correctness of the assumption that the present complaint states violations of the law of nations, the dissent's observation is not relevant to our determination in this case. Certainly, it may state desirable goals of foreign policy. But the determination of foreign policy goals and the means to achieve them is not for us. 'The conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative--'the political'--departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.' Oetjen v. Cent. Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726 (1918). This principle is most germane to the question of whether we should create a cause of action within the ATS jurisdiction against the caution of Sosa. In Sosa, the Supreme Court expressly stated, 'a private right of action is better left to legislative judgment in the great majority of cases.' 542 U.S. at 727, 124 S.Ct. 2739. While this observation was prompted by generally applicable concerns with reference to the legislative function, the Supreme Court went on to note the particular applicability to the area in which we now act. '[T]he potential implications for the foreign relations of the United States of recognizing such causes should make courts particularly wary of impinging on the discretion of the Legislative and Executive branches in managing foreign affairs.' Id."

"The Sosa Court further cautioned against judicial creation of such causes of action, observing "[w]e have no congressional mandate to seek out and define new and debatable violations of the law of nations, and modern indications of congressional understanding of the judicial role in the field have not affirmatively encouraged greater judicial creativity." Id. at 728, 124 S.Ct. 2739. The Sosa Court also recognized that the Torture Victim Protection Act, supra, provides a basis for 'federal claims of torture and extrajudicial killing,' but as we observed above, that legislation does not extend to the complaints before us. See id. The noble goals expressed in *1192 our dissenting colleague's observation should perhaps guide the foreign policy of the United States, but that is not for us to say. Certainly, noble goals cannot expand the jurisdiction of the court granted by statute."

The United States Court of Appeals for the Eleventh Circuit reverses the orders denying the motion to dismiss and remands the case to the District Court for dismissal.

In its dissenting opinion Circuit Judge MARTIN concluded that Kiobel is not a good precedent for this case.

"The Kiobel opinion offers little assistance about what kinds of domestic connections would be necessary to overcome the presumption against extraterritoriality. But I see this case as one which does just that, for at least two reasons. First, the primary defendant in this case is Chiquita Brands International (Chiquita), a corporation headquartered and incorporated within the territory of the United States. Second, these plaintiffs are not seeking to hold Chiquita liable for conduct that took place on foreign soil. Rather, they allege that Chiquita participated in a campaign of torture and murder in Colombia by reviewing, approving, and concealing a scheme of payments and weapons shipments to Colombian terrorist organizations, all from their corporate offices in the territory of the United States. [2] For these reasons, I believe that we have jurisdiction to consider the plaintiffs' claims."

"First, the plaintiffs' claims 'touch and concern' the territory of the United States because they allege violations of international law by an American national. Quite different from Kiobel, the plaintiffs in this case do not rely on Chiquita's "mere corporate presence" in the United States to justify ATS jurisdiction. Id. Chiquita is incorporated in New Jersey and headquartered in Ohio. Principles of international law as well as historical materials tell us why this is a crucial difference and is ultimately dispositive of the case we consider here. Indeed, I am persuaded that the ATS was intended to provide a remedy for extraterritorial violations of the law of nations like those alleged to have been committed here by United States nationals like Chiquita."

"[...] [I]t is a fundamental principle of international law that every State has the sovereign authority to regulate the conduct of its own citizens, regardless of whether that conduct occurs inside or outside of the State's territory. See Restatement (Third) of The Foreign Relations Law of the United States [section] 402(2) (1987) ('[A] state has jurisdiction to prescribe law with respect to ... the activities, interests, status, or relations of its nationals outside as well as within its territory.'). This has been true from the beginnings of our union, and at the time the ATS was first enacted. See Rose v. Himely, 8 U.S. (4 Cranch) 241, 279, 2 L.Ed. 608 (1808) (observing that beyond its own territory, the laws of a country 'can only affect its own subjects or citizens'); The Apollon, 22 U.S. (9 Wheat.) 362, 370, 6 L.Ed. 111 (1824) ('The laws of no nation can justly extend beyond its own territories, except so far as regards its own citizens.'). In keeping with this fundamental principle, the same foreign governments who urged the Supreme Court to dismiss the claims in Kiobel also acknowledged that an ATS claim would have 'a sufficiently close connection' with the United States when the violation of the law of nations was committed by a United States citizen. See Kiobel, Brief for Gov't of the Kingdom of the Netherlands et al. as Amici Curiae, 14. [...]"

"More fundamentally, the framers of the ATS gave voice to the idea that the United States had not only the authority, but also international legal obligations to provide a forum for aliens to receive compensation for the most egregious offenses committed by Americans in other countries. Speaking on the law of nations, William Blackstone stated that 'where the individuals of any state violate this general law, it is then the interest as well as duty of the government under which they live, to animadvert upon them with a becoming severity, that the peace of the world may be maintained.' 4 William Blackstone, Commentaries on the Laws of England 68 (1769); see also Emmerich de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns, bk. II, ch. VI [section] 77 (1758) (Charles G. Fenwick trans., 1916) (A sovereign who refuses to repair the evil done by one of his subjects, or to punish the criminal, or, finally, to deliver him up, makes himself in a way an accessory to the deed, and becomes responsible for it.'). The United States would fail to meet the expectations of the international community were we to allow U.S. citizens to travel to foreign shores and commit violations of the law of nations with impunity. See Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980)."

"Another distinction between Kiobel and the case now before us is the plaintiffs here do not seek to hold Chiquita liable for any of its conduct on foreign soil. See id. Critically, the plaintiffs instead have alleged that Chiquita's corporate officers reviewed, approved, and concealed payments and weapons transfers to Colombian terrorist organizations from their offices in the United States with the purpose that the terrorists would use them to commit extrajudicial killings and other war crimes."

"This is not, therefore, a case where a defendant is being haled into court under the ATS exclusively for actions that took place on foreign soil. See, e.g., Kaplan v. Central Bank of Islamic Rep. of Iran, 961 F.Supp.2d 185, 205 (D.D.C.2013) (dismissing claims under Kiobel because 'the attacks were allegedly funded by Iran, launched from Lebanon, and targeted Israel'). Neither is this a case in which plaintiffs are seeking to circumvent the Kiobel presumption by holding an American company vicariously liable for the unauthorized actions of its subsidiaries overseas. See, e.g., Balintulo v. Daimler AG, 727 F.3d 174, 192 (2d Cir.2013) (holding that the Kiobel presumption is not displaced where an American corporation is vicariously liable for actions taken within South Africa by a South African subsidiary). Rather, the plaintiffs seek to hold Chiquita liable for violations of international law it committed within the territory of the United States."

Following a number of post-Kiobel decisions Judge Martin concluded that the plaintiffs' claims here sufficiently "touch and concern" the territory of the United States because they allege that Chiquita violated international law from within the United States by offering substantial assistance to a campaign of violence abroad.

"[...] [T]he 'touch and concern' test satisfied when a defendant aids and abets overseas torts from within the United States. See Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 53031, 2014 WL 2922840, at *12 (4th Cir. June 30, 2014) (finding that presumption was displaced in part because CACI's managers in the United States gave tacit approval to the acts of torture, attempted to cover up the misconduct, and encouraged it); Sexual Minorities Uganda v. Lively, 960 *1195 F.Supp.2d 304, 323-24 (D.Mass.2013) (finding that the presumption was displaced because the defendant was a resident of the United States and provided assistance to an overseas campaign of persecution from the United States); Mwani v. Laden, 947 F.Supp.2d 1, 5 (D.D.C.2013) (holding that a terrorist attack that (1) was plotted in part within the United States, and (2) was directed at a United States Embassy and its employees displaced the presumption); Krishanti v. Rajaratnam, 2014 WL 1669873, at *10 (D.N.J. Apr. 28, 2014) ('The Rajaratnam Defendants focus on the fact that all of the harm to Plaintiffs occurred in Sri Lanka. This argument would hold weight if the Plaintiffs were suing the LTTE for the actions it took in Sri Lanka. However, Plaintiffs are instead suing the Rajaratnam Defendants for their alleged actions that occurred within the United States."); see also Du Daobin v. Cisco Sys., Inc.,_F.Supp.2d_, _, 2014 WL 769095, at *9 (D.Md. Feb. 24, 2014) (observing that Kiobel may be distinguishable because (1) 'Cisco is an American company'; and (2) plaintiffs alleged that Cisco's actions 'took place predominantly, if not entirely, within the United States)."

"In sum, I do not read Kiobel to be an impediment to providing a remedy to civilians harmed by a decades-long campaign of terror they plainly allege to have been sponsored by an American corporation. Again, these plaintiffs do not seek relief for the offenses of a foreign defendant on foreign soil. These plaintiffs seek relief in a United States court for violations of international law committed by United States citizens while on United States soil. Certainly, these extraterritorial claims 'touch and concern the territory of the United States' with great force. By failing to enforce the ATS under these circumstances, I fear we disarm innocents against American corporations that engage in human rights violations abroad. I understand the ATS to have been deliberately crafted to avoid this regrettable result."

CITATION: Cardona v. Chiquita Brands International, Inc., 760 F.3d 1185 (11th Cir. 2014)
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Publication:International Law Update
Date:Jan 1, 2015
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