Supreme Court Docket Report, October Term, 2003 - Number 5

By Miriam R. Nemetz

On December 1, 2003, the Supreme Court granted certiorari in three cases of potential interest to the business community, including one case in which Mayer, Brown, Rowe & Maw LLP represents the respondents. Amicus briefs in support of the petitioners are due on Thursday, January 15, 2004, and amicus briefs in support of the respondents are due on Thursday, February 19, 2004.

1. Alien Tort Statute . Private Right of Action for Violation of International Law. The Alien Tort Statute (ATS) (also known as the Alien Tort Claims Act), which was enacted as part of the Judiciary Act of 1789, provides that "[t]he 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. ß 1350. The Supreme Court granted certiorari in Sosa v. Alvarez-Machain, No. 03-339, to determine whether the ATS is simply a grant of jurisdiction, or whether it also creates a private cause of action that allows aliens to sue for violations of international law. If the Court decides that the ATS does create a private right of action, it also may decide whether it authorizes actions only for violations of fundamental international norms, or whether violations of lesser categories of international law also are actionable under the statute.

In 1990, the U.S. Drug Enforcement Agency arranged for the abduction in Mexico and transportation to the United States of Humberto Alvarez-Machain, who was suspected of involvement in the 1985 kidnapping and murder of a DEA agent. Jose Sosa, a private citizen, participated in Alvarez-Machain's capture at the request of the DEA. After the Supreme Court ruled that the trial could proceed (see United States v. Alvarez-Machain, 504 U.S. 665 (1992)), Alvarez-Machain was tried in the U.S. and acquitted. Subsequently, Alvarez-Machain sued Sosa under the ATS in federal district court in California. The district court granted summary judgment for Alvarez-Machain, holding that Sosa's conduct violated international law.

A panel of the Ninth Circuit affirmed the judgment against Sosa. 266 F.3d 1045 (2001). The Ninth Circuit granted rehearing en banc, and, by a 6-5 vote, again affirmed the judgment. 331 F.3d 604 (2003). The court of appeals first noted its view that the ATS "not only provides federal courts with subject matter jurisdiction, but also creates a cause of action for an alleged violation of the law of nations." Id. at 612 (citing Hilao v. Estate of Marcos (In re Estate of Marcos, Human Rights Litig.), 25 F.3d 1467, 1475 (9th Cir. 1994)). It then explained that it would not restrict ATS suits to those alleging violations of jus cogens norms ó i.e., norms that are "derived from values taken to be fundamental by the international community" and that hence "enjoy the highest status within international law" (id. at 613 (internal quotation marks omitted)) . but also would recognize claims for violation of "customary international law," which "rests on the consent of states" (id.). The court of appeals then held that, although the transborder abduction of Alvarez-Machain did not violate international law, his arbitrary arrest and detention did violate a "clear and universally recognized norm" and hence was actionable under the ATS. Id. at 620.

Like the Ninth Circuit, the Second and Eleventh Circuits have held that the ATS creates a cause of action for certain violations of international law. See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980); Flores v. Southern Peru Copper Corp., 343 F.3d 140 (2d Cir. 2003); Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir.), cert. denied, 519 U.S. 830 (1996). By contrast, judges of the D.C. Circuit have opined that the ATS merely provides federal district courts with subject matter jurisdiction over claims that are...

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