No. 09-34

sup~meCoua, u.s. IFILED

AU6 1 0 2009[__OFRCE OFTHE CLERK

IN THE

PFIZER, INC.,

Vo

Petitioner,

RABI ABDULLAHI, et al.,Respondents.

On Petition for a Writ of CertiorariTo the United States Court of Appeals

For the Second Circuit

MOTION FOR LEAVE TO FILE BRIEF ANDBRIEF OF WASHINGTON LEGAL FOUNDATION

AND ALLIED EDUCATIONAL FOUNDATIONAS AMICI CURIAE

IN SUPPORT OF PETITIONER

Date: August 10, 2009

Daniel J. PopeoRichard A. Samp

(Counsel of Record)Washington Legal Foundation2009 Massachusetts Ave., NWWashington, DC 20036(202) 588-0302

WILSON-EPES PRINTING CO., INC. - (202) 789-0096 - WASHINGTON, O. C. 20002

MOTION OF WASHINGTON LEGAL FOUNDATIONAND ALLIED EDUCATIONAL FOUNDATION

FOR LEAVE TO FILE BRIEFAS AMICI CURIAE IN SUPPORT OF PETITIONER

Pursuant to Rule 37.2 of the Rules of this Court,the Washington Legal Foundation (WLF) and the AlliedEducational Foundation (AEF) respectfully move forleave to file the attached brief as amici curiae in supportof Petitioner. Counsel for Petitioner signed a letterconsenting to the filing of this brief. Counsel for theAbdullahi Respondents indicated in an email that hisclients consented to the filing. Counsel for the AdarnuRespondents did not respond to requests for consent.Accordingly, this motion for leave to file is necessary.

WLF is a public interest law and policy centerheadquartered in Washington, DC, with supporters inall 50 states. WLF devotes a substantial portion of itsresources to defending and promoting free enterprise,individual rights, and a limited and accountablegovernment. In particular, WLF has devotedsubstantial resources over the years to opposinglitigation designed to create private rights of actionunder the Alien Tort Statute (ATS), 28 U.S.C. § 1350,because such litigation generally seeks (inappropriately,in WLF’s view) to incorporate large swaths of allegedlycustomary international law into the domestic law of theUnited States. See, e.g., Sosa v. Alvarez-Machain, 542U.S. 692 (2004); Matar v. Dichter, 563 F.3d 9 (2d Cir.2009). WLF also filed a brief in this matter when it wasbefore the appeals court.

AEF is a non-profit charitable and educationalfoundation based in Englewood, New Jersey. Foundedin 1964, AEF is dedicated to promoting education in

diverse areas of study, and has appeared as amicuscuriae in this Court on a number of occasions.

Amici agree with the Court’s view, expressed inSosa, that a decision to create a private right of action isone better left to legislative judgment. Congress hasgiven no indication that it has authorized recognition ofthe open-ended federal common law medical malpracticetort recognized by the Second Circuit in this case. Inthe absence of any such indication, amici believe it isinappropriate for the courts to create such a cause ofaction on their own.

Amici are also concerned that an overly expansiveinterpretation of the ATS threatens to undermineAmerican foreign and domestic policy interests. Byexercising ATS jurisdiction over events taking place inforeign countries whose courts often have a muchgreater stake in those events than do American courts,the federal appeals are risking the creation ofconsiderable conflict between the United States andthose foreign countries - and they are doing so in theabsence of any clear indication from Congress that itapproves of such litigation.

Amici have no direct interest, financial orotherwise, in the outcome of this case. They seek to filetheir brief due solely to an interest in maintainingappropriate limits on federal court jurisdiction. Amiciaddress the second Question Presented only: what isthe appropriate level at which to place Sosa’s "high barto new private causes of action" under the ATS?

For the foregoing reasons, amici WLF and AEFrespectfully request that they be allowed to participate;in this case by filing the attached brief.

Respectfully submitted,

Daniel J. PopeoRichard A. SampWashington Legal Foundation2009 Massachusetts Avenue, NWWashington, DC 20036202-588-0302

Dated: August 10, 2009

QUESTION PRESENTED

Amici address only the second issue raised by thepetition:

Whether, absent state action, a complaint that aprivate actor has conducted a clinical trial of amedication without adequately informed consent cansurmount the "high bar to new private causes of action"under the ATS that this Court recognized in Sosa v.Alvarez-Machain, 542 U.S. 682,727 (2004).

That issue necessarily encompasses anexamination of just how high the bar should be set inATS cases. In particular, should the bar be set lowenough to permit such ATS actions to proceed when theevents at issue took place in a foreign country and theprivate actor is a corporation?

ooo111

TABLE OF CONTENTSPage

TABLE OF AUTHORITIES ...................iv

INTERESTS OF AMICI CURIAE .............. 1

STATEMENT OF THE CASE ..................1

REASONS FOR GRANTING THE PETITION ....

I.

III.

REVIEW IS WARRANTED TODETERMINE WHETHER THE ATSAPPLIES EXTRATERRITORIALLY ......7

A. Offenses Against Ambassadors .....12

B. Violations of Safe Conducts ........14

C. Piracy .......................... 15

REVIEW IS WARRANTED TODETERMINE WHETHER THE ATSAPPLIES TO CORPORATIONS .........17

CONCLUSION ............................. 22

iv

TABLE OF AUTHORITIESPage(s)

Cases:

EEOC v. Arabian American Oil Co.,499 U.S. 244 (1991) ......................... 8

F. Hoffmann-La Roche Ltd. v. Empagran S.A.,542 U.S. 155 (2004) ......................... 8

Filartiga v. Pena-Irala630 F.2d 876 (2d Cir. 1980) .................2, 9

Hilao v. Estate of Marcos,25 F.3d 1467 (9th Cir. 1994),cert. denied, 513 U.S. 1126 (1995) .....~ ....... 9

Khulumani v. Barclay National Bank Ltd.,504 F.3d 254 (2d Cir. 2007), aff’d for lackof quorum sub nom., American Isuzu Motors,Inc. v. Ntsebeza, 128 S. Ct. 2424 (2008) ....5, 6, 17,

18, 19Microsoft v. AT& T Corp.,

550 U.S. 437 (2007) ......................... 8Sosa v. Alvarez-Machain,

542 U.S. 692 (2004) .....................passimTaveras v. Taveraz,

477 F.3d 767 (6th Cir. 2007) ................. 14The Apollon,

22 U.S. (9 Wheat.) 362 (1824) .................8United States v. Klintock,18 U.S. (5 Wheat.) 144 (1820) ................16

United States v. Palmer,16 U.S. (3 Wheat.) 610 (1818) ................16

United States v. Smith,18 U.S. (5 wheat.) 153 (1820) ................16

V

Statutes and Constitutional Provisions:Page(s)

U.S. Const., Art. I, § 8, cl. 10 ..................13

U.S. Const., Art. III,§ 2 ...................... 13

Alien Tort Statute ("ATS"),29 U.S.C. § 1350 ........................ passim

Torture Victim Protection Act,29 U.S.C. § 1350 note ....................... 21

1 Stat. 112, §§ 8, 25 (April 12, 1790) ............11

Miscellaneous:

Azuni, part 2, c. 5, art. 3(Mr. Johnson’s translation) ................. 16

M. Charif Bassiouni, Crimes AgainstHumanity in International CriminalLaw (2d ed. 1999) ......................... 18

William Blackstone, Commentarieson the Laws of England (1769) .........10, 14, 15

William R. Casto, The Federal Courts"Protective Jurisdiction Over TortsCommitted in Violation of the Law ofNations, 18 CONN L. REV. 467 (1986) ..........13

Page(s)

Andrew Clapham, The Question of JurisdictionUnder International Criminal Law OverLegal Persons: Lessons from the RomeConference on an International CriminalCourt, in Liability of MultinationalCorporations Under International Law(Menno T. Kamminga & Saman Zia-Zarifieds., 2000) ................................ 19

Journals of the Continental Congress(G. Hunt ed., 1912) ........................ 12

Khulumani v. Barclay National Bank Ltd.,504 F.3d 254 (2d Cir. 2007) (Brief of theUnited States as Amicus Curiae) .............10

James Madison, Journal of theConstitutional Convention(E. Scott ed, 1893) ......................... 11

10p. Att’y Gen. 57 (1795) ..................... 8

The Rome Statute of the ICC art. 25(1),opened for signature July 17, 1998, 37 I.L.M.999, 1016 (entered into force July 1, 2002) .....20

BRIEF OF WASHINGTON LEGAL FOUNDATIONAND ALLIED EDUCATIONAL FOUNDATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTERESTS OF AMICI CURIAE

The interests of amici curiae Washington LegalFoundation and Allied Educational Foundation are morefully set forth in the accompanying motion to file thisbrief.1

Amici are concerned that an overly expansiveinterpretation of the ATS threatens to undermineAmerican foreign and domestic policy interests. TheCourt expressed similar concerns in Sosa in 2004.Several federal appellate courts, including the courtbelow, appear not to have heeded that expression ofconcern and instead have continued, apace with therecognition of an ever-expanding federal common law ofactionable violations under "the law of nations."

STATEMENT OF THE CASE

This case arises from claims by citizens of Nigeriathat they were injured as a result of allegedly deficientmedical care. Respondents (or their relatives) weretreated by a team of doctors sent by Petitioner PfizerInc. to Nigeria in response to a severe outbreak ofmeningitis. They allege that Pfizer failed to inform

1 Pursuant to Supreme Court Rule 37.6, amici state that nocounsel for a party authored this brief in whole or in part; and thatno person or entity, other than amici and their counsel, made amonetary contribution intended to fund the preparation andsubmission of this brief. Ten days prior to the due date, counsel foramici provided counsel for Respondents with notice of intent to file.

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them that they were to be treated with Trovan, whichRespondents describe as a "new, untested, andunproven" antibiotic, and that they would not haveconsented to treatment had they been aware of Trovan’ sunapproved status. They further allege that Pfizer’ssole purpose in providing medical assistance was tocollect data that would speed Food and DrugAdministration (FDA) approval of Trovan for pediatricuses.

One group of Respondents (the "AbdullahiRespondents") filed suit in federal district court in NewYork, alleging a cause of action against Pfizer under theATS, 28 U.S.C. § 1350. They allege that Pfizer’sconduct is actionable as a violation of customaryinternational law. A second group of Respondents (the"Adamu Respondents") filed suit in federal court inConnecticut; that suit was later transferred to New Yorkas a related case to the one filed by the AbdullahiRespondents.

The district court dismissed the complaint of theAbdullahi Respondents in August 2005 for failure tostate a claim under the ATS. Pet. App. l14a-152a. Thecourt held that to state a claim under the ATS, aplaintiff must allege violation of a "clear andunambiguous" rule of customary international law. Id.at 135a (quoting Filartiga v. Pena-Irala, 630 F.2d 876,884 (2d Cir. 1980)). The court held that none of thedocuments cited by Respondents - including theNuremberg Code, the Declaration of Helsinki, guidelinesauthored by the CIOMS, article 7 of the InternationalCovenant on Civil and Political Rights ("ICCPR"), andthe Universal Declaration of Human Rights - provided

3

the requisite "clear and unambiguous" rule. Id. at 135a-142a. The court said, "A cause of action for Pfizer’s’failure to get any consent, informed or otherwise,before performing medical experiments on the subjectchildren’ would expand customary international law farbeyond that contemplated by the ATS." Id. at 141a. InNovember 2005, the district court dismissed thecomplaint of the Adamu Respondents on substantiallysimilar grounds. Id. at 153a-174a.

A divided Second Circuit panel reversed withrespect to both sets of Respondents. Pet. App. 1a-106a.The majority recognized that when this Court held inSosa v. Alvarez-Machain, 542 U.S. 692 (2004), thatCongress (in adopting the ATS) had authorized federalcourts to create a "relatively modest set" of federalcommon law causes of action for violations of the lawnations, it "set ’a high bar to new private causes ofaction’" beyond those contemplated in 1789. Id. at 17a-18a. The majority nonetheless held that Respondents’complaints met that high bar, finding that Pfizer’salleged actions in Nigeria violated a norm: (1) ofinternational character that States uniformly abide by,or accede to, out of a sense of legal obligation; (2) that isdefined with a specificity comparable to the 18th-centuryparadigms discussed in Sosa; and (3) that is of mutualconcern to States. Id. at 20a-50a. It thus reversed thedismissal of the ATS claims. The majority alsoremanded the cases for reconsideration of forum nonconveniens issues and, with respect to the AdamuRespondents, for reconsideration of a choice-of-law issueaffecting their separate claims under Connecticut law.Id. at 52a-58a.

4

Judge Wesley dissented and would have upheldthe district court’s dismissal. Id. at 58a-106a. Whileagreeing with the majority’s methodolog~ used "todetermine whether a norm falls within the jurisdictionalgrant of the ATS," he disagreed with the majority’sconclusion "that a norm against non-consensual medicalexperimentation on humans by private actors is (1)universal and obligatory or (2) a matter of mutualconcern." Id. at 60a. He acknowledged that "manycountries have prohibited private actors fromconducting medical experiments or treatments withoutinformed consent." Id. at 73a. Judge Wesley nonethe-less asserted that such prohibitions are irrelevant forpurposes of customary international law, because it isonly when states prohibit domestic action as a result of"express international accords" (which he asserted didnot exist here) that a wrong becomes a violation ofcustomary international law. Id. at 73a-74a.

Judge Wesley added:

"[S]ubstantive uniformity" among states’domestic laws is only a starting point fordemonstrating international custom throughindividual state practice, which should alsoreflect a "procedural" consensus among states onhow that behavior should be prosecuted - bothcriminally and civilly. See Sosa, 542 U.S. at 761-62 (Breyer, J., concurring).

Id. at 74a. Judge Wesley asserted that there was no"procedural" consensus that would allow tort actionsunder international law for non-consensual medicaltreatment. Id.

5

REASONS FOR GRANTING THE PETITION

This petition raises issues of exceptionalimportance. The Court in Sosa made clear that courtsshould exercise great caution in recognizing new federalcommon law rights of action under the ATS. Indeed, itindicated that there might not be any additional causesof action beyond the three common law rights of actiongenerally recognized at the time Congress adopted theATS in 1789.

But far from heeding Sosa’s words of caution, theSecond Circuit and several other federal appellate courtshave viewed Sosa as a license to continue with businessas usual and to create an ever-expanding array of federalcommon law causes of action for alleged violations of thelaw of nations. The failure-to-obtain-informed-consentcause of action recognized by the panel in this casecarries that trend to new heights.

Last year, the Court was presented with anexcellent vehicle for answering several basic issuesregarding the scope of ATS liability, when numerouscorporations sought review of a Second Circuit decisionthat allowed an ATS suit to go forward based on claimsthat the corporations had aided and abetted humanrights violations by doing business in South Africa whilethe apartheid government was still in power.Unfortunately, four Justices were unable to participatein that case, and the lack of a quorum prevented theCourt from granting review. Khulumani v. BarclayNational Bank Ltd., 504 F.3d 254 (2d Cir. 2007), aff’dfor lack of quorum sub nora., American Isuzu Motors,Inc. v. Ntsebeza, 128 S. Ct. 2424 (2008).

6

Two of those basic issues are once again raised bythis petition, thereby rendering it a particularly suitablevehicle for addressing ATS claims. First, the SecondCircuit panel determined that the ATS could be appliedto conduct that took place in a foreign country, just asit had in Khulumani and in a series of earlier ATSdecisions. Sosa did not address the extraterritorialreach of the ATS, but amici note that the United Stateshas repeatedly taken the position that the ATS does notapply to alleged violations of the law of nations that takeplace within foreign countries, and a number of thebriefs filed with the Court in American Isuzu explicitlyraised the issue. Review is warranted to determinewhether, in light of the presumption that federalstatutes do not apply extraterritorially, the SecondCircuit erred in recognizing an ATS cause of actionbased on actions allegedly taken by Pfizer in Nigeria.The extraterritoriality issue is fairly encompassedwithin Issue 2 of the Petition.

Second, the Second Circuit panel recognized anATS cause of action against a corporate defendant. Sosaraised the issue (without deciding) whether privatecorporations could be proper defendants in an ATSaction. Sosa, 542 U.S. at 732 n.20. Amici nonethelessnote that there is a significant body of evidencesuggesting that the law of nations does not recognizeactions for damages against corporations. Indeed, theissue was explicitly raised by those seeking review fromKhulumani, and the dissenting Second Circuit judge inKhulumani would have affirmed dismissal of theapartheid litigation on the ground that corporations arenot proper ATS defendants. Khulumani, 504 F.3d at321-26. Review is warranted to determine whether the

7

Second Circuit erred in recognizing an ATS cause ofaction in this case given that the sole defendant (Pfizer)is a corporation. The corporate defendant issue if fairlyencompassed within Issue 2 of the Petition; the issuegoes to the question of where Sosa’s "high bar to newprivate causes of action" should be placed.

REVIEW IS WARRANTED TO DETERMINEWHETHER THE ATS APPLIESEXTRATERRITORIALLY

In light of Sosa’s admonition that federal courtsexercise "great caution" in recognizing any federalcommon law rights actionable under the ATS (inaddition to the three common law rights of actiongenerally recognized at the time of the ATS’s adoptionin 1789), it is incumbent on courts to take a careful lookat the broad scope of the causes of action that plaintiffsin this and many other ATS cases are asking the courtsto recognize. Plaintiffs with few or no contacts with theUnited States routinely ask lower federal courts toresolve human rights disputes centered in a foreigncountry, and an increasing number of lower federalcourts have determined that the ATS authorizes thecourts to do so. This Court has never addressed theissue of whether Congress intended the ATS to applyextraterritorially. Amici respectfully submit that inlight of the presumption against extraterritorialapplication of U.S. laws, the lower federal courts are inneed of guidance from this Court regarding whetherCongress, when it adopted the ATS in 1789, reallyintended to authorize federal courts to create federalcommon law rights based on actions taken within aforeign country.

8

There is serious reason to doubt that Congressharbored such an intent. Since the early years of theRepublic, there has been a strong presumption "thatlegislation of Congress, unless a contrary intent appears,is meant to apply only within the territorial jurisdictionof the United States." EEOC v. Arabian American OilCo., 499 U.S. 244, 248 (1991).2 As the Court recentlyexplained, "Foreign conduct is generally the domain offoreign law," and "courts should ’assume that legislatorstake account of the legitimate sovereign interests ofother nations when they write American law.’"Microsoft Corp. v. AT& T Corp., 550 U.S. 437,455 (2007)(quoting F. Hoffmann-La Roche Ltd. v. Empagran S.A.,542 U.S. 155, 164 (2004)). In the absence of anyevidence that Congress intended that federal commonlaw causes of action recognized pursuant to ATSjurisdiction should extend to activities within foreignnations, the presumption against extraterritorialapplication of the ATS should hold sway.

Sosa itself expressed grave doubt that any such

2 The Supreme Court "assume[s] that Congress legislates

against the backdrop of the presumption againstextraterritoriality." Id. Thus, "unless there is the affirmativeintention of the Congress clearly expressed" in "the language [of]the relevant Act," the Court presumes that a statut~ does not applyto actions arising abroad. Id. The presumption againstextraterritoriality was well-established at the time the ATS wasadopted. See The Apollon, 22 U.S. (9 Wheat) 362, 370 (1824). The1795 opinion of Attorney General Bradford, to which the Courtreferred in Sosa, stated that insofar as "the transactionscomplained of originated or took place in a foreign country, they arenot within the cognizance of our courts; nor can the actors belegally prosecuted or punished for them by the United States." 1Op. Att’y Gen. 57, 58 (1795).

9

causes of action should be recognized and indicated thatfederal courts should exercise extreme caution beforedoing so. Those doubts were based in large part on "thepotential implications for the foreign relations of theUnited States of recognizing such causes." Sosa, 542U.S. at 727. The Court explained:

It is one thing for American courts to enforceconstitutional limits on our own State andFederal Governments’ power, but quite anotherto consider suits under rules that go so far as toclaim a limit on the power of foreign governmentsover their own citizens, and to hold that a foreigngovernment or its agents has transgressed thoselimits .... Since many attempts by federal courtsto craft remedies for the violation of new normsof international law would raise risks of adverseforeign policy consequences, they should beundertaken, if at all, with great caution.

Id. at 727-28 (emphasis added). As the Petition explains(at 27-28), one can readily foresee the adverse foreignpolicy consequences that could arise from lawsuits ofthis sort.

Amici acknowledge that several federal appealscourts have recognized federal common law rights ofaction under the ATS based on conduct occurring inforeign countries, and we are aware of no federalappellate decisions that have barred such rights ofaction. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876(2d Cir. 1980); Hilao v. Estate of Marcos, 25 F.3d 1467(9th Cir. 1994), cert. denied, 513 U.S. 1126 (1995). Butnone of those decisions - even those decided after Sosa

10

- directly addressed the extraterritoriality issue. Theysimply assumed without deciding that any ATS-basedcause of action should be recognized without regard towhere the underlying events took place. The federalappeals courts have thus far declined to address theissue despite a series of post-Sosa amicus curiae briefsfiled by the United States, in which the governmentargued that causes of action recognized under the ATSshould be limited to events taking place in the UnitedStates or on the high seas. See, e.g., Khulumani v.Barclay National Bank Ltd., 504 F.3d 254 (2d Cir. 2007)(Brief of United States as Amicus Curiae).

Furthermore, the history leading up to adoptionof the ATS in 1789 strongly suggests that Congress didnot intend the ATS to apply extraterritorially. As Sosarecognized, the ATS was adopted in response to adecade-long concern that America’s standing within theinternational community would suffer if it failed touphold international law by failing to permit aliens ameans of seeking redress in American courts for injuriesinflicted on them by virtue of violations of the law ofnations. Sosa, 542 U.S. at 715-19. Those concernsfocused on injuries suffered by aliens while living in theUnited States. Id. Nothing in the pre-1789 historyprovides any support for the proposition that the ATSwas intended to apply extraterritorially.

As Sosa explained, late 18th-century legal scholarsrecognized only three offenses by individuals thatviolated the law of nations: piracy, offenses againstambassadors, and violations of safe conducts. Sosa, 542U.S. at 715 (quoting 4 William Blackstone, Commen-taries on the Laws of England 68 (1769)). It was those

11

offenses that Congress apparently had in mind when itadopted the ATS. Id. at 719. Most importantly,Congress apparently was mindful of the need to createan adequate judicial forum when those offenses werecommitted within the United States. Id.~

Concern about creating an adequate forum foraddressing violations of the law of nations arose duringthe American Revolution, "owing to the distribution ofpolitical power from independence through the period ofconfederation." Id. at 716. As the Court explained:

The Continental Congress was hamstrung by itsinability to "cause infractions of treaties, or of thelaw of nations to be punished." J. Madison,Journal of the Constitutional Convention 60 (E.Scott ed. 1893), and in 1781 the Congressimplored the States to vindicate rights under thelaw of nations. In words that echo Blackstone,the congressional resolution called upon statelegislatures to "provide expeditious, exemplar,,and adequate punishment" for "the violation ofsafe conducts or passports,.., of hostility againstsuch as are in amity,.., with the United States,¯.. infractions of the immunities of ambassadorsand other public ministers... [and] infractions of

3 The same Congress that enacted the ATS enacted a

statute criminalizing the three offenses - piracy, assaults onambassadors, and violations of safe conducts - that gave rise to theATS. 1 Stat. 112, §§ 8, 25 (April 30, 1790). Like the ATS, thecriminal statute was silent regarding whether it was to haveextraterritorial application. However, although invoked byprosecutors many times, the statute was never invoked in casesinvolving actions taken within the territory of another nation.

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treaties to which the United States are a party."21 Journals of the Continental Congress 1136-37(G. Hunt ed. 1912). The resolution recommendedthat the States "authorize suits.., for damagesby the party injured, and for compensation to theUnited States for damages sustained by themfrom an injury done to a foreign power by acitizen." Id., at 1137.

Sosa, 542 U.S. at 716. Quite plainly, the concernfocused on misconduct committed by American citizensand others living within this country. The UnitedStates could only be said to have "sustained" damagesby virtue of "an injury to a foreign power" if the injuryoccurred domestically; only then could the Nation’sinternational esteem be thought to have suffered byvirtue of having failed to prevent the injury to thealien/foreign power from occurring.

A. Offenses Against Ambassadors

Two events in the 1780s - involving assaults onforeign government officials within the United States -heightened the "appreciation of the ContinentalCongress’s incapacity to deal with" violations of the lawof nations. Id. The first event, the Marbois Affair ofMay 1784, was widely recognized as a sign of theweakness of the national government. A "Frenchadventurer, Longchamps, verbally and physicallyassaulted the Secretary of the French Legion," Mr.Marbois, in Philadelphia. Id. "The internationalcommunity was outraged and demanded that theCongress take action, but the Congress was powerless todeal with the matter. It could do nothing but offer a

13

reward for the apprehension of de Longchamps so thathe could be delivered to the state authorities." WilliamR. Casto, The Federal Courts’ Protective JurisdictionOver Torts Committed in Violation of the Law ofNations, 18 CONN. L. REV. 467, 491-92 (1986). TheMarbois Affair "was a national sensation that attractedthe concern of virtually every public figure in America.The Continental Congress’s impotence when confrontedwith violations of the law of nations had been clearlyestablished." Id. at 492-93. It was discussed onnumerous occasions at the Constitutional Convention in1787 and led to inclusion of Art. I, § 8, cl. 10 (grantingCongress the power to "define and punish... Offencesagainst the Law of Nations") and Art. III,§ 2 (grantingfederal courts jurisdiction over "Cases affectingAmbassadors [and] other public Ministers andConsuls").

A similarly notorious incident occurred in 1787during the ratification process following the convention.A local New York City constable entered the house ofthe Dutch ambassador and arrested one of his servants.This "affront" to diplomatic immunity "outraged" theambassador, who protested to national governmentofficials; but "[a]s in the Marbois Affair, the nationalgovernment was powerless to act." Casto, at 494. Theonly sanction came at the hands of state courts in NewYork, which deemed the constable’s conduct a violationof the law of nations, actionable under New York’scommon law. Id. at 494 n.153. Thus, when Congressadopted the ATS in 1789 in order to create federal courtjurisdiction over the three torts thought actionable asviolations of the law of nations, the two best-knownexamples of torts made actionable thereby (Marbois and

14

the Dutch ambassador) both involved conduct that hadtaken place within the United States.

B. Violations of Safe Conducts

There is also no evidence that Congresscontemplated extraterritorial application of the secondtort covered by the ATS, violations of safe conducts. Asexplained by the Sixth Circuit, a "safe conduct" isdefined as "[a] privilege granted by a belligerentallowing an enemy, a neutral, or some other person totravel within or through a designated area for a specificpurpose .... Blackstone makes it clear that a violationof safe conducts occurs when an alien’s privilege to passsafely through the host nation is infringed and the alienconsequently suffers injury to their ’person or property.’4 Blackstone, Commentaries on the Law of England, at68-69." Taveras v. Taveraz, 477 F.3d 767, 773 (6th Cir.2007). No 18th century legal commentator suggestedthat nations should be concerned about protecting therights of aliens who were traveling through othernations. Rather, it was understood that a nation shouldbe concerned with protecting the rights of aliens whohad been granted a safe conduct while traveling throughthat nation,t

Blackstone explained that violations of safeconducts "are breaches of the public faith, without thepreservation of which there can be no intercoursebetween one nation and another." Blackstone, at 68-69.

4 Also understood to be protected were aliens passing

through overseas territories, in those areas in which the nation"had a military presence." Taveras, 477 F.3d at 773.

15

If a nation was to avoid war with the nation whosecitizen’s travel was interrupted, it was required topunish the individual responsible for the interruption.Id. Accordingly, new nations like the United States, inorder to preserve peace, had a particular interest inensuring that redress was provided to those foreignerswhose safe conducts were violated while traveling in theUnited States. Conversely, such nations would have hadlittle interest in providing a judicial forum to, forexample, a Spaniard who claimed that his safe conduct(akin to a modern-day visa or passport) had beenviolated while he traveled through England.Interpreting the ATS to provide jurisdiction in federalcourt over such a cause of action would likely lead toconflict with England, the precise opposite from theintended purpose of providing redress for violations ofsafe conducts.

C. Piracy

The third tort covered by the ATS in 1789, piracy,quite clearly encompassed conduct that occurred outsidethe territorial jurisdiction of the United States. Butwhile the federal courts exercised jurisdiction overpiracy on the high seas, that jurisdiction did not includeacts of piracy occurring within the jurisdiction of foreignnations.

Indeed, piracy was viewed in the 18th century asa unique offense precisely because it so often occurredoutside the sovereign territory of any nation. Unlessnations were willing to exercise jurisdiction over acts ofpiracy occurring outside their territory, then many suchacts would go unpunished. Thus, by general agreement

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of legal commentators, all nations were both entitledand obligated to punish piracy on the high seas. See, e.g.United States v. Smith, 18 U.S. (5 Wheat.) 153, 163 n.8(1820) ("’[A]s pirates are the enemies of the humanrace, piracy is justly regarded as a crime against theuniversal laws of society, and is everywhere punishedwith death .... [E]very nation has a right to pursue,and exterminate them, without a declaration of war.’")(quoting Azuni, part 2, c. 5, art. 3, Mr. Johnson’stranslation); United States v. Klintock, 18 U.S. (5Wheat.) 144, 152 (1820) (those engaging inrobbery/plunder on the high seas "are proper objects forthe penal codes of all nations," unless they are acting"under the acknowledged authority of a foreign State.").

Importantly, not only was the 1790 piracy statutenever invoked to cover alleged acts of piracy within theterritory of a foreign nation, the Supreme Courtinterpreted that statute as not even applying torobberies committed by ships on the high seas sailingunder the authority of a foreign nation. United Statesv. Palmer, 16 U.S. (3 Wheat.) 610, 630-34 (1818). It isdifficult to believe that the same Congress that adoptedan anti-piracy statute of such limited scope nonethelessadopted an ATS statute for the purpose of extending thefederal common law so as to regulate conduct withinforeign nations.

In sum, neither the text nor legislative history ofthe ATS suggests that Congress intended the ATS toapply to conduct occurring within foreign nations.Under those circumstances, the presumption against theextraterritorial application of U.S. law suggests that theATS does not apply to the events at issue here, which

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occurred in Nigeria. Review is warranted to determinewhether "the high bar to new private action" under theATS, Sosa, 542 U.S. at 727, precludes extraterritorialapplication of the ATS.

III. REVIEW IS WARRANTED TO DETERMINEWHETHER THE ATS APPLIES TOCORPORATIONS

As Judge Wesley noted in dissent, the panel’sconclusion that there exists "substantive uniformity"among states’ domestic laws is "only a starting point"for determining whether an alleged norm ofinternational law should be actionable under the ATS.Pet. App. 74a. There must also be "a ’procedural’consensus among states on how that behavior should beprosecuted - criminally and civilly." Id. (citing Sosa,542 U.S. at 761-62 (Breyer, J., concurring)). One suchprocedural issue identified by Sosa is whether there isan international consensus that private corporations areappropriate subjects for criminal and civil enforcementof international law norms. Review is warranted in lightof the substantial evidence that no such consensusexists.

In his dissent from the Second Circuit’s apartheiddecision, Judge Korman set out at length the caseagainst holding corporations liable under the ATS.Khulumani, 504 F.3d at 321-26 (Korman, J..,dissenting). As Judge Korman explained:

There is a significant basis for distinguishingbetween personal and corporate liability. Wherethe private actor is an individual, he is held liable

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for acts which he has committed and for which hebears moral responsibility. On the other hand,"legal entities, as legal abstractions can neitherthink nor act as human beings, and what islegally ascribed to them is the resulting harmproduced by individual conduct performed in thename or for the benefit of those participating inthem or sharing in their benefits." M. CharifBassiouni, Crimes Against Humanity inInternational Criminal Law 378 (2d ed. 1999).Thus, the issue here is whether an artificialentity that is allegedly used as a vehicle for thecommission of a crime against humanity may beheld vicariously liable.

Id. at 321. Judge Korman concluded that federalcommon law rights of action should not be recognizedagainst corporations under the ATS because "[t]hesources evidencing the relevant norms of internationallaw at issue plainly do not recognize such liability." Id.

In support of its contention that the law ofnations prohibits non-consensual medical treatment, thecourt below relied to a significant degree on the warcrimes trials at Nuremberg following World War II. Pet.App. 26a-31a. There is serious question whether thehistory of the Nuremberg prosecutions provides anysupport whatsoever for Respondents’ allegationsregarding the medical treatment provided by Pfizer inNigeria in 1996.5 But one highly relevant fact regarding

5 Amici are disturbed by the cavalier comparisons being

made between Pfizer’s conduct and that of Nazi doctors tried atNuremberg. Pfizer is accused of failing to obtain informed consent

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the Nuremberg trials was not mentioned by the courtbelow: the charter authorizing those trials empoweredthe tribunal to try "persons." See Khulumani, 504 F.3dat 321-22 (Korman, J., dissenting). No corporationswere charged with crimes at Nuremberg, even thoughindividual corporate officers were charged with "actingthrough the instrumentality" of their corporations incommitting various crimes against humanity. Id.

Nor was the failure to seek sanctions againstcorporations for violations of international law uniqueto Nuremberg. In each of the recently adopted statutesand treaties establishing international tribunals topursue criminal prosecution of those guilty of violatinginternational human rights, jurisdiction was limited toprosecution of individuals. Id. at 323 (citing statutes forthe International Criminal Tribunal for the formerYugoslavia and the International Criminal Tribunal forRwanda, as well as the Convention Against Torture andOther Cruel, Inhuman, or Degrading Treatment orPunishment; the Apartheid Convention; and theGenocide Convention).

Indeed, the treaty drafters for the newly createdInternational Criminal Court expressly rejected,following lengthy debate, attempts to include corporateliability for international human rights law violationswithin its jurisdiction. See, e.g., Andrew Clapham, The

before providing treatment to patients admittedly suffering fromlife-threatening diseases and thus in need of treatment, in a country.in desperately short supply of doctors and medicine. To comparethose allegations to Nazi atrocities grossly trivializes the latter,which involved non-therapeutic medical experiments performed onprisoners held at concentration camps.

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Question of Jurisdiction Under International CriminalLaw Over Legal Persons: Lessons from the RomeConference on an International Criminal Court, inLiability of Multinational Corporations UnderInternational Law 139, 141-58 (Menno T. Kamminga &Saman Zia-Zarifi eds., 2000). As a result, the RomeStatute (which creates the International CriminalCourt) provides for jurisdiction over only "naturalpersons." The Rome Statute of the ICC art. 25(1),opened for signature July 17, 1998, 37 I.L.M. 999, 1016(entered into force July 1, 2002).

In light of the consistent rejection of corporatecriminal liability for violations of customaryinternational law, it is highly doubtful that corporateliability should be deemed to have the widespreadacceptance within the international communitydemanded by Sosa before a federal common law right ofaction can be deemed to exist.

Nor is there evidence to suggest thatinternational law differentiates between imposition ofcivil and criminal penalties on corporations. Amici areunaware of any decision from a court outside the UnitedStates holding a corporation either civilly or criminallyliable for violations of international law.~ If there weresuch a decision, one could reasonably expect thatproponents of corporate ATS liability for human rights

6 A country may choose of course, to adopt a statute ortreaty prohibiting certain types of conduct by corporations andthereby to expose corporations to potential liability. But impositionof liability under domestic statutes cannot be said to constituteimposition of liability under international law- the relevant inquiryin an ATS case.

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violations would have cited it. The failure of thoseproponents to cite such a case, in the face of repeatedclaims by opponents that no such case exists, is strongevidence that there is no international consensus thatcorporations may be held liable under international lawfor alleged human rights violations.

Finally, amici note that Sosa cautioned that "adecision to create a private right of action is one betterleft to legislative judgment in the great majority ofcases." Sosa, 542 U.S. at 727. Judicial caution isparticularly appropriate with respect to the creation offederal common law causes of action againstcorporations pursuant to the ATS, because Congressexpressly rejected corporate liability when it enacted aclosely analogous statute. The Torture VictimProtection Act of 1991 ("TVPA"), 28 U.S.C. § 1350 note,creates a cause of action (for the benefit of aliens andcitizens alike) for claims of torture and extrajudicialkilling under color of foreign law. The TVPA excludescorporate liability by limiting liability to "[a]n individualwho.., subjects an individual to torture." Congress’sdecision to bar claims against corporations under theTVPA is a strong indication that it has not authorizedthe courts to act on their own to create federal commonlaw causes of action against corporations for violationsof international human rights law.

As the Petition well documents, Americancorporations doing business overseas have become theprincipal targets of ATS lawsuits in recent years. Inlight of the increasing frequency of such suits and theconsiderable evidence that there is no internationalconsensus that corporations are subject to either

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criminal or civil penalties for violations of customaryinternational law, review is warranted to determinewhether Sosa’s "high bar to new private causes ofaction" permits the recognition of corporate liabilityunder the ATS.

CONCLUSION

Amici curiae request that the Court grant thepetition for a writ of certiorari.

Respectfully submitted,

Daniel J. PopeoRichard A. Samp

(Counsel of Record)Washington Legal Foundation2009 Massachusetts Ave., NWWashington, DC 20036(202) 588-0302

Dated: August 10, 2009

Counsel wish to thank Jordan Miller, a student at TexasTech University Law School, for his assistance inpreparing this brief.