By Alicia Pitts
In Adhikari v. Kellogg Brown & Root, Inc., the Fifth Circuit issued the latest edition in a series of circuit court decisions that adopted a restrictive “location of the conduct” formulation for the test used to evaluate the Alien Tort Statute’s (ATS) extraterritorial application. The ATS, which grants district courts original jurisdiction in “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,” was passed in 1789. Despite centuries of disuse after its passing, over the past few decades the ATS has become an exceedingly popular means by which noncitizen parties seek compensation for wrongs committed outside of U.S. borders. Since 2010, the Supreme Court has issued several opinions outlining a two-step framework to be applied by courts facing claimants alleging extraterritorial applications of U.S. law. The first step, which asks whether the statute rebuts the presumption against extraterritoriality by giving a “clear indication of an extraterritorial application,” was answered in the negative by Kiobel v. Royal Dutch Petroleum Co., thus establishing an unswerving “presumption against extraterritoriality” for all ATS cases. But uncertainty regarding the second step, which asks “whether the case involves a domestic application of the statute . . . by looking to the statute’s ‘focus,’” has led to a major circuit split over what the statute’s “focus” should be. The Fifth Circuit was correct when it joined the Second and Eleventh Circuits in adopting a restrictive, territory-centric test because a narrow formulation of the ATS’s jurisdictional grant will preserve the legislative intent behind the ATS, promote the core principles anchoring relevant Supreme Court precedent, respect boundaries between foreign sovereigns, and uphold constitutional delegations of foreign affairs powers.
Alicia Pitts, Extraterritoriality and the Alien Tort Statute— Narrow Application Preserves Crucial Boundaries, 71 SMU L. Rev. 607 (2018)