Tort/Negligence – Somali Citizen’s ‘Alien Tort’ Claim Dismissed

Warfaa v. Ali (Lawyers Weekly No. 001-024-16, 30 pp.) (Agee, J.) No. 14-1810, Feb. 1, 2016; USDC at Alexandria, Va. (Brinkema, J.) 4th Cir.

Holding: The 4th Circuit upholds a district court decision that dismissed plaintiff Somali citizen’s claims under the Alien Tort Statute against defendant, a Somali National Army officer who now lives in Virginia, for plaintiff’s alleged torture in Somalia in 1987; the court also affirms the holding that defendant was not entitled to immunity as a foreign official.

Alien plaintiffs, like this one, have sought to invoke the ATS as a means to seek relief for international human-rights violations. The Supreme Court explained in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), that the reach of the ATS is narrow and strictly circumscribed.

This court has applied Kiobel only once, in Al Shimari v. CACI Premier Tech. Inc., 758 F.3d 516 (4th Cir. 2014), a case involving four plaintiffs suing an American military contractor and its employees who were alleged to be American citizens directly responsible for abusive mistreatment and torture at the Abu Ghraib prison in Iraq. There, the court found that plaintiffs’ claims sufficiently touched and concerned the U.S. to establish jurisdiction under the ATS. Al Shimari is best read to note that the presumption against ATS extraterritorial application is not irrefutable. An ATS claim premised on no relevant conduct in the U.S. will fit within the heartland of cases to which the extraterritoriality presumption applies.

Plaintiff’s cross-appeal asks the court to apply Kiobel and Al Shimari to permit a claim against a U.S. resident arising out of conduct that occurred solely abroad. His claims fall squarely within the ambit if Kiobel’s broad presumption against extraterritorial application of the ATS. The only purported “touch” in this case is the happenstance of defendant’s after-acquired residence in the U.S. long after the alleged events of abuse. Plaintiff has pled no claim which “touches and concerns” the U.S. to support ATS jurisdiction. The district court did not err in dismissing the ATS counts for lack of jurisdiction.

The district court allowed plaintiff’s claims under the Torture Victim Protection Act of 1991 to go forward, finding defendant lacked foreign official immunity for jus cogens violations under Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012). The district court correctly rejected defendant’s claim of foreign official immunity.

Judgment affirmed.

Concurrence & Dissent

Gregory, J.: I write separately to dissent from part III of the majority opinion, as I would hold that the Supreme Court decision in Kiobel does not foreclose the possibility of relief under the Alien Tort Statute. No circuit court has decided a post-Kiobel ATS case premised on principal liability brought against an individual defendant who has sought safe haven in the U.S., a key difference the majority does not address.

Defendant’s status as a lawful permanent resident alone distinguishes this case from Kiobel, where the corporate defendant was merely “present.” Defendant’s after-acquired residence in this country is not mere “happenstance.” Lastly, when the alleged acts of torture took place, defendant was serving as a commander in the Somali National Army. In that same capacity, he received extensive military training, on numerous occasions, in the U.S.

Defendant is alleged to have committed gross human rights abuses, for which he was deported from Canada, and is now a lawful permanent resident. The U.S. is the sole forum in which he is amenable to suit. The atrocious nature of these allegations, the extensive contacts with the U.S. and the context of those contacts renders jurisdiction proper under the ATS. I would reverse the summary dismissal of the ATS claims and find plaintiff has pleaded sufficient facts to proceed with the ATS claims.