As many commentators anticipated after the Fifth Circuit’s January 3, 2017 decision in Adhikari v. Kellogg Brown & Root, Inc., No. 1520225 (5th Cir. Jan. 3, 2017), the Adhikari plaintiffs are seeking Supreme Court review of the Fifth Circuit’s decision. The January 2017 decision held that claims asserted against a US defense contractor for alleged human trafficking and related injuries in Nepal, Jordan, and Iraq were not cognizable under the Alien Tort Statute (ATS). The Fifth Circuit, applying the US Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co., held that the presumption against extraterritorial application of a statute bars claims under the ATS for injuries occurring abroad.
The Supreme Court in Kiobel concluded that the ATS could create jurisdiction over violations of “the law of nations or a treaty of the United States” occurring overseas only when claims “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application.” The plaintiffs in Adhikari alleged that although the injuries occurred outside the United States, Kiobel’s “touch and concern” language permitted their claims because the complaint alleged that trafficking was conducted by agents of KBR’s US operations, KBR paid the agent from US banks, KBR employees in the US were aware of the trafficking scheme, and that KBR’s contract was issued and directed from the United States, supported the US military, and performed on a US military base in Iraq. As we noted previously, here, the Adhikari court, however, held that the “focus” of the ATS is “conduct that violates international law.” Because the alleged conduct in violation of international law occurred in Nepal, Jordan, and Iraq, the claims did not “touch and concern” the US and were, therefore, barred under Kiobel.
The petition (subscription required), filed June 2, 2017, argues that the Fifth Circuit incorrectly applied Kiobel’s test and that other circuits, particularly the Fourth Circuit’s decision in Al Shimari v. CACI Premier Technology, Inc., consider a “broader range of facts” and do not solely focus on the location of the alleged violation of international law. The petition argues that the Supreme Court should take the case to resolve the clear circuit split where five circuits have taken slightly different views of the Kiobel standard.
We will continue to follow the case as additional pleadings are filed.