We’ve often written about the saga of human rights litigation in U.S. courts after Kiobel v. Royal Dutch Petroleum, which imposed a new requirement that cases under the Alien Tort Statute (ATS) must have some connection to the United States. Several federal Courts of Appeals, which sit one level below the Supreme Court, have weighed in so far – with a number of different results. Now, it’s the Ninth Circuit’s chance.
What’s at stake in the Ninth Circuit? Potentially, a lot. Many human rights cases have been litigated in the Ninth Circuit, including seminal cases against the estate of former Philippines dictator Ferdinand Marcos, and ERI’s own cases against Unocal and Chevron.
The case that the Ninth Circuit is Doe v. Cisco Systems, which arises out of the Chinese government’s crackdown on the Falun Gong, a religious minority. Falun Gong survivors sued Cisco, a U.S. corporation, alleging that the company aided and abetted human rights violations. The plaintiffs allege that Cisco procured a contract with the Communist Party to customize, design and control the “Golden Shield,” an extensive surveillance system. They claim that while Cisco received large profits from the Golden Shield, the Communist Party used it to target, identify, track, torture and kill members of Falun Gong – and that Cisco continued to manage and control the Golden Shield from its California headquarters even after human rights violations were widely reported by the U.S. State Department, the United Nations and human rights organizations.
The federal court hearing the case found that, after the Kiobel decision, the fact that Cisco is a U.S. corporation and supported the Golden Shield from the United States was not a sufficient connection to the United States. Now the plaintiffs have filed an appeal with the Ninth Circuit, and we filed an amicus brief supporting the appeal. We argue that according to Kiobel and the Ninth Circuit’s opinion in Mujica v. Occidental Petroleum, the ATS claims here do sufficiently touch and concern the United States. In particular, we think that the district court did not give enough weight to Cisco’s citizenship, which we believe is a highly significant connection to the U.S.
As Upasana wrote last year, we wished that the Supreme Court had clarified the law in our case against Chiquita, which was decided by the Eleventh Circuit. We now have decisions interpreting Kiobel from the D.C. Circuit, Second Circuit, Fourth Circuit, and Eleventh Circuit, none of which is exactly consistent with the others.
So it is unclear how the Ninth Circuit will rule. It may follow the Eleventh Circuit, which rejected our ATS claims against Chiquita on behalf of paramilitary violence, even though Chiquita is American and its scheme to fund the paramilitaries was orchestrated from the U.S. Or it may agree with other courts that have held that injuries in ATS cases do not have to occur on U.S. soil.
But one thing we know is that no matter how the Ninth Circuit rules, there will still be inconsistent interpretations of Kiobel that will continue to limit the accountability of companies for their complicity in human rights abuses.