Embed Size (px)
Citation preview
!
No. 10-1776
_____________________________________________________________
IN THE
Supreme Court of the United States
_____________________________________________________________
ZEUDI ARAYA,
Petitioner,
v.
FLUORBURTON CORPORATION, an Evans Corporation,
Respondent.
CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
THIRTEENTH CIRCUIT
___________________________________________________________
BRIEF FOR RESPONDENT
_________________________________________
Team #11
Attorneys for Respondent
Josiah Jenkins
Whitney Friedman
! "!
QUESTIONS PRESENTED
I. Whether the federal courts can impose corporate liability under the Alien Tort Statute
where no clear international norm of liability allows jurisdiction over corporations?
II. Whether the Thirteenth Circuit Court of Appeals violated petitioner’s Due Process
rights in not granting her motion to recuse Chief Judge Garnett?
! ""!
TABLE OF CONTENTS
QUESTIONS PRESENTED................................................................................................ i TABLE OF CONTENTS.................................................................................................... ii TABLE OF AUTHORITIES ............................................................................................. iii CITATIONS TO THE OPINIONS BELOW ..................................................................... v JURISDICTION ................................................................................................................. v CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED............................. v STATEMENT OF THE CASE.......................................................................................... vi SUMMARY OF THE ARGUMENT ................................................................................ ix ARGUMENT...................................................................................................................... 1
I. THIS COURT SHOULD AFFIRM THE JUDGMENT OF THE COURT BELOW, BECAUSE THE ALIEN TORT STATUTE DOES NOT MAKE CORPORATIONS LIABLE FOR AIDING AND ABETTING CONDUCT OCCURRING OUTSIDE OF THE UNITED STATES. ................................................................................................ 1
A. The ATS does not apply to corporations because corporate liability is unrecognized under the law of nations. ...................................................................... 3
1. This Court must look to international norms to determine whether a given private actor can be held liable under the “law of nations.” ................................... 3 2. There is no sufficiently clear, specific, universal, and obligatory norm of corporate liability under customary international law. ........................................... 5
B. The ATS does not provide a remedy for claims covered under the TVPA....... 10 C. The claims at issue are beyond the judicial cognizance of the Federal Courts..13
1. The political question doctrine requires the court to abstain where a party is accused of aiding and abetting a ruling regime..................................................14
a. Foreign policy questions are textually committed to the Executive Branch, and that branch is better able than the courts to decide when a regime has violated the law of nations. ............................................................................... 15 b. The ATS is aimed chiefly at avoiding war, and that purpose would not be served through aiding and abetting violations of the kind alleged here. .......... 18
2. The ATS applies to extraterritorial conduct and, if at all, only in the narrow class of cases that allow for universal jurisdiction.................................................20
II. THE THIRTEENTH CIRCUIT COURT OF APPEALS DID NOT VIOLATE PETITIONER’S DUE PROCESS RIGHTS BY DENYING HER MOTION TO RECUSE CHIEF JUDGE GARNETT. ........................................................................ 24
A. Recusing Judge Garnett does not comport with the history of judicial recusal. 24 B. Judge Garnett does not have a pecuniary interest in the outcome of this case.. 25 C. The case at bar does not present “extreme facts” demonstrating that Judge Garnett had a probability of actual bias. ................................................................... 27
1. The facts in the instant case are not extreme enough to warrant recusal.......... 27 2. Judge Garnett does not have a “probability of actual bias.” .......................... 29 3. Requiring Judge Garnett’s recusal will weaken the public’s faith in the judicial system. ..................................................................................................... 30
D. Judge Garnett should not be disqualified for casting the final vote. ................. 31 E. Judge Garnett did not express opinions on the matter in controversy. .............. 31
CONCLUSION................................................................................................................. 32
! """!
TABLE OF AUTHORITIES
!"#$#!
28 U.S.C. § 1292(b) #################################################################################################################################################################### $""!
28 U.S.C. § 1331 (West 2010)#################################################################################################################################################### $!
28 U.S.C. § 1350 #################################################################################################################################################################%&''"(!
28 U.S.C. § 453############################################################################################################################################################################# )*!
28 U.S.C. § 455################################################################################################################################################################################ +!
42 U.S.C. § 1983 #############################################################################################################################################################################,!
Act of May 8, 1792, ch. 36 § 11, 1 Stat. 275 #################################################################################################################### -,!
Federal Rule of Civil Procedure 12(b)(6) ###############################################################################################################################.!
U.S. Const. amend. V. ################################################################################################################################################################### $!
Withrow v. Larkin, 421 U.S. 35 (1975) ################################################################################################################################ -/!
#%"%&%$#!
Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813 (1986) ####################################################################################### +"0!-1!
Ali Shafi v. Palestinian Authority, 642 F.3d 1088 (D. C. Cir. 2011) ##################################################################### -0!./!
American Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003) ############################################################################################## .,!
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ###############################################################################################################################.!
Aziz v. Alcolac, Inc., -- F.3d -- (4th Cir. Sep 19, 2011) ############################################################################### -0!.*0!..0!.2!
Baker v. Carr, 369 U.S. 186 (1962)################################################################################################################################## -0!.,!
Bogan v. Scott-Harris, 523 U.S. 44(1998) #############################################################################################################################,!
Bowoto v. Chevron Corp., 621 F.3d 1116 (9th Cir. 2010) ######################################################################################.*0!..!
Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009) #######################################################################%&''"(!
!"#"$%&'()&"#%*(+,(-.!0!33!4#5#!330!.)*!5#!67#!891!:-*.*; ###################################################################################################1!
Comm’r of Internal Revenue v. Lundy, 516 U.S. 235 (1996)######################################################################################## ..!
Correctional Services Corp. v. Malesko, 534 U.S. 61 (2003)####################################################################################### .*!
Doe VIII v. Exxon Mobil Corp., -- F.3d -- (D.C. Cir. July 8, 2011)###################################################################%&''"(!
First Nat’l. City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611 (1983)############################# .*!
Flomo v. Firestone Natural Rubber Co., LLC, 643 F.3d 1013 (7th Cir. 2011) ########################################,0!20!80!-.!
FTC v. Cement Inst., 333 U.S. 683 (1948) ########################################################################################################################## -9!
Imbler v. Pachtman, 424 U.S. 409 (1976) ##############################################################################################################################,!
In re Murchison, 349 U.S. 133 (1955) ################################################################################################################################## -2!
Kadic v. Karadzic, 70 F.3d 232 (2nd Cir. 1995) ########################################################################################################.-0!.9!
Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 252 (2d Cir. 2007) ################################################################### /0!.1!
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010)#################################################################%&''"(!
Marbury v. Madison, 5 U.S. 137 (1803) ############################################################################################################################## .,!
Mayberry v. Pa., 400 U.S. 455 (1971) ####################################################################################################################################+"!
Mohamad v. Rajoub, 634 F.3d 604 (D.C. Cir. 2011)################################################################################################.*0!..!
Morrison v. Nat'l Austrl. Bank Ltd., 130 S. Ct. 2869, 177 L. Ed. 2d 535 (2010)############################################# -0!-.!
Oetjen v. C. Leather Co, 246 U.S. 297 (1918) ################################################################################################################### .2!
Romero v. Drummond Co., Inc., 552 F.3d 1303 (11th Cir. 2008) ############################################################################### .*!
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)########################################################################################################%&''"(!
Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir. 1984) ############################################################################# ./!
Texas v. Johnson, 491 U.S. 397 (1989) ################################################################################################################################ ).!
The Apollon, 22 U.S. 362(1824) ############################################################################################################################################# -.!
The Paquete Habana, 175 U.S. 677 (1900) ###########################################################################################################################2!
Tumey v. Ohio, 273 U.S. 510 (1927) ########################################################################################################################+"0!-20!-/!
United States v. Kehlbeck, 766 F. Supp. 707 (S.D. Ind. 1990) ##################################################################################### )*!
United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818)################################################################################################ .1!
! "$!
United States v. Smith, 18 U.S. 153 (1820) ######################################################################################################################### --!
Vance v. Rumsfeld – F.3d -- (7th Cir. 2011) ####################################################################################################################### .-!
Vieth v. Jubelirer, 541 U.S. 267 (2004)################################################################################################################################ .,!
Ward v. Village of Monroeville, 409 U.S. 57 (1972) ################################################################################################# +"0!-1!
'%($)*"&%(')+%+$#!
§ 404 Restatement (Third) of Foreign Relations Law IV, 1, A In NT (1987) ######################################################### --!
8 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10
(1952) ############################################################################################################################################################################################9!
Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis art. 6,
Aug. 8, 1945################################################################################################################################################################################9!
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) ####################################################################################### .8!Brian Knowlton, House Panel Assails Genocide of Armenians, Defying Obama and Angering Turkey, New
York Times, March 5, 2010################################################################################################################################################ .1!
6<=7><?!6<@=A"?!B&C!D<#!-*0!EF=!G=A>H&'H!"=!IH?H%J<=H!&=K!IH?HL>&%J!M&7H'0N!O&>AJ!-*0!./,1 #############8!
6<=7><?!6<@=A"?!B&C!D<#!-80!EI&+!<=!PHH>!&=K!O&7AJH'0N!O&Q!.*0!./,1 ##############################################################8!
6<=7><?!6<@=A"?!B&C!D<#!))0!E6H='@'!<R!7JH!SH>(&=!T<%@?&7"<=0N!U@?Q!-*0!./,1 ##############################################8!
Debra C. Weiss, Scalia Continues Media Blitz, Tells Students ’I am not a Moralist-in-Chief’, ABA J. (Apr.
10, 2008) ################################################################################################################################################################################### ).!
F. Aaron Ludwig, A Judge’s Failure to Recuse Himself, 48 Duq. L. Rev. 929, 949-50 (2010) ################# -2!
Herreros v. Deutsche Afrika-Linian, 232 Fed. Appx. 90 (3d. Cir. 2007) ################################################################# .1!
Louise Weinberg, Federal Common Law, 83 Nw. U. L. Rev. 805 (1989) ############################################################# .)!
Sarei v. Rio Tinto, 487 F.3d 1193 (9th Cir. 2007) ############################################################################################################ .9!
The Torture Victim Protection Act: Hearing and Markup before the H. Comm. on Foreign Affairs on H.R.
1417, 100th Cong. 82 (1988) ############################################################################################################################################# ..!
United Nations Report of the Special Representative of the Secretary General on the Issue of Human Rights
and Transnational Corporations and Other Business Enterprises, U.N. Doc. A/HRC/4/35 (Feb. 19, 2007)
#########################################################################################################################################################################################################/!William Dodge, The Historical Origins of the Alien Tort Statute: A Response to the “Originalists”, 19
Hastings Int’l & Comp. L. Rev. 221 ################################################################################################################################ .)!
! $!
CITATIONS TO THE OPINIONS BELOW
The memorandum and order of the United States District Court for the Eastern
District of Evans can be found in the Record at 12-15. The memorandum and order of the
United States Court of Appeals for the Thirteenth Judicial Circuit can be found in the
Record at 16-25.
JURISDICTION
The judgment of the United States Court of Appeals for the Thirteenth Judicial
Circuit was entered on April 11, 2010. Petition for writ of certiorari was granted on
December 1, 2010. This Court has jurisdiction under 28 U.S.C. § 1331 (West 2010).
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
The Fifth Amendment of the United States Constitution provides, in relevant part:
“No person shall . . . be deprived of life, liberty, or property, without due process of law” U.S. Const. amend. V.
The Alien Tort Statute, 28 U.S.C. § 1350 provides:
“The 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."
! $"!
STATEMENT OF THE CASE
The Fluorburton Corporation (“Fluorburton”) is a corporation incorporated in the
State of Evans. Record on Appeal (“R.”) at 2. As a part of its business operations,
Fluorburton engages in oil extraction and development in the former Soviet republic of
Moesia. R. 2, 3. Zeudi Araya (“Petitioner”) is a citizen of the Republic of Moesia. R. 2.
Between 1991 and 1995, the nation of Moesia was engaged in a civil war. R. 3.
The civil war was waged primarily between the nation’s two major ethnic groups, the
Praetorians and the Plebians. R. 3. The civil war came to a conclusion in March 1995
when the Praetorian Octavian Carpethia gained control over the central government. R. 3.
In order to help stabilize the economy after the civil war, the Carpethia
administration contracted with Fluorburton to extract and refine Moesia’s oil reserves. R.
3. These extraction and refinement efforts were opposed by the Movement for Survival of
Plebeian People (“MOSOPP”). R. 3-4. According to the facts presented in the complaint,
Fluorburton aided and abetted the extrajudicial killing of Petitioner’s family members,
the unlawful detention of her person, and multiple acts of violence committed against
members of MOSOPP by the Moesian military. R. 4-5.
Petitioner sued Fluorburton in the United States District Court for the Eastern
District of Evans, alleging liability under the Alien Tort Statute (“ATS”), 28 U.S.C. §
1350. R. 2. She alleges seven different counts of aiding and abetting liability under the
ATS. R. 5-8.
Fluorburton filed a motion to dismiss the complaint for failure to state a cause of
action under Federal Rule of Civil Procedure 12(b)(6). R. 9. Fluorburton argued that the
ATS did not provide a private right of action; that ATS claims do not apply to non-state
! $""!
actors; and that Petitioner had not alleged offenses in violation of the law of nations. R. 9.
On March 15, 2010, the United States District Court for the District of Evans
dismissed several of Petitioner’s claims for failure to state a cause of action under the
ATS. R. 13. The District Court held that some of the Petitioner’s other claims did state a
cause of action and allowed them to proceed. R. 13. However, noting a “substantial
difference of opinion,” the district court certified the issue for interlocutory appeal under
28 U.S.C. § 1292(b). R. 12. The United States Court of Appeals for the Thirteenth Circuit
granted the leave to appeal on April 11, 2010. R.16.
On appeal, the Court of Appeals for the Thirteenth Circuit dismissed the remainder
of petitioner’s claims. R. 21. Over a dissent, the majority held that corporations cannot be
held liable under the ATS. R. 20-21. The Court of Appeals also concluded that aiding and
abetting liability was inappropriate under the ATS, noting that “[aiding and abetting
liability] should instead be addressed in the first instance by the political branches.” R.
20-21.
Judge Garnett voted with the majority in the Court of Appeals. R. 25. Petitioner
filed a motion to request Garnett’s recusal, stating that Garnett’s “past interactions with
MOSOPP representatives create a probability of bias.” R. 21. The Court of Appeals did
not require Garnett to recuse himself. R. 25. Garnett served as the Undersecretary for
Natural Resource Exploration and Development from 1996 to 2006, four years prior to
his judicial appointment. R. 21, 22. The events underlying Petitioner’s motion occurred
eight years before Fluorburton filed its petition for leave to appeal, and four years before
Garnett was appointed to his present judicial position. R. 22.
! $"""!
Garnett had many obligations as Undersecretary, and one was to head the Garnett
Commission. R. 21. The Garnett Commission assessed United States foreign policy
implications of private oil exploration efforts in Asia. R. 21. While serving as
Undersecretary, Garnett discussed one of the Garnett Commission’s reports with a
MOSOPP representative on a cable news program. R. 21. This public exchange only
pertained to the report, and had no relation to MOSOPP’s charges regarding Fluorburton.
R. 22. Garnett has never taken a public position on the matter in controversy. R. 22.
This Court granted Petitioner’s a writ of certiorari on December 1, 2010. R. 26.
! "+!
SUMMARY OF THE ARGUMENT
This Court should uphold the ruling of the Court below. First, the Thirteenth
Circuit Court of Appeals correctly held that corporations cannot be liable under the Alien
Tort Statute and it appropriately refrained from addressing Fluorburton’s aiding and
abetting liability. Next, the Court of Appeals did not violate Petitioner’s Due Process
rights in refusing her motion to recuse Chief Judge Garnett. The standard of review for
both issues is de novo.
I.
The Alien Tort Statute does not provide a cause of action against aliens. The
Alien Tort Statute allows courts to recognize violations only in narrowly confined
circumstances. The federal courts cannot hold an actor liable under the statute where
customary international law would not impose the same liability.
Customary international law does not recognize corporate civil liability.
International tribunals have refused to recognize liability for corporations, preferring
liability for individual actors. Although treaties have imposed liability on corporations in
specific contexts, treaties have not recognized a cause of action against corporations for
human rights violations of the kind alleged here. Where customary international law
makes no recognition of corporate liability, the United States’ federal court cannot
impose that corporate liability under customary international law.
Even if corporate liability were proper under the Alien Tort Statute, that liability
is not available for claims of torture or extrajudicial killing. The Torture Victim
Protection Act, by its clear terms, forecloses the ability for United States citizens to
recover for extrajudicial killing or torture claims. Absent a clear Congressional intent to
! +!
the contrary, this court should not recognize a cause of action available to an alien that is
foreclosed to a citizen.
Furthermore, the causes of action stated here, which seek to impose liability for
aiding and abetting the Moesian government, must be dismissed under the political
question doctrine. Foreign policy powers are constitutionally committed to the Executive
Branch, and the courts should not interfere with the Executive’s foreign relations power
by denouncing the actions of foreign governments. In addition to encroaching on the
powers of the Executive Branch, such denouncements would undermine the Alien Tort
Statute’s core purpose of avoiding war.
Finally, the Alien Tort Statute does not apply to conduct occurring in a foreign
nation. Under the canon against extraterritorial application , this court will not apply a
statute extraterritorially absent a clear command to the contrary. Even if extraterritorial
application of the statute were appropriate, it would extend to only those offenses that
allow for universal jurisdiction in any nation’s domestic courts. The claims at issue here
do not open up an actor to universal jurisdiction and, thus, the Alien Tort Statute does not
apply.
II.
Federal judicial recusal is governed under 28 U.S.C. § 455 and the Due Process
Clause of the Fourteenth Amendment. Section 455(a) requires recusal when a judge’s
“impartiality might reasonably be questioned.” 28 U.S.C. § 455(a) (2006). Section 455(b)
delineates specific circumstances that demand recusal. 28 U.S.C. § 455(b) (2006).
However, Petitioner waives her Section 455 argument for further review by this Court,
and thus, only focuses on the Due Process Clause. R. 26.
! +"!
The Fifth Amendment to the United States Constitution prohibits the government
from “[depriving] any person of life, liberty, or property, without due process of law.”
U.S. Const. amend. V. This Court dealt with due process violations that stemmed from
judges’ pecuniary interests in three seminal cases: Tumey v. Ohio, 273 U.S. 510 (1927);
Ward v. Village of Monroeville, 409 U.S. 57 (1972); Aetna Life Insurance Co. v. Lavoie,
475 U.S. 813 (1986). In Tumey, this Court held that a person’s due process rights are
violated when a presiding judge has a “direct, personal, substantial, pecuniary interest” in
the case’s outcome. 273 U.S. at 523. In Ward, this Court broadened the Tumey standard
to require recusal when a judge has an indirect pecuniary interest in a case. 409 U.S. at
60. This Court also expanded on the holding from Tumey in Aetna, where it held that a
judge must be recused when his pecuniary interests lead him to act as “a judge in his own
case.” 475 U.S. at 824.
In addition to situations involving a judge’s pecuniary interest, this Court also
requires recusal when there is a high “probability of actual bias on the part of the judge.”
Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, 2259 (2009). In Caperton v.
A.T. Massey Coal Co., Inc., this Court held that a judge’s “probability of actual bias” is
only high enough to warrants recusal in “extraordinary situations.” Id. at 2265-67. Thus,
Caperton is narrowly applied to cases comprised of “extreme facts.” Id. at 2265-66.
Although the standard for recusal continues to develop, this Court persistently stresses
that “not every attack on a judge...disqualifies him from sitting.” Id. at 2262 (quoting
Mayberry v. Pa., 400 U.S. 455, 465 (1971)).
Ultimately, this Court should uphold the lower court’s recusal decision for five
reasons. First, judicial recusal has not historically applied to circumstances like those
! +""!
present in the instant case. Second, Judge Garnett is not faced with the financial
temptations present in Tumey, Ward, and Aetna. Third, the instant case does not involve
extreme facts illustrating that Judge Garnett had a high probability of actual bias. Fourth,
requiring Judge Garnett’s recusal for decided the final vote lacks both precedent and
merit. Lastly, Judge Garnett has neither entertained prejudicial notions nor publicly
expressed opinions about the matter in controversy.
! .!
ARGUMENT
I. THIS COURT SHOULD AFFIRM THE JUDGMENT OF THE COURT
BELOW, BECAUSE THE ALIEN TORT STATUTE DOES NOT MAKE
CORPORATIONS LIABLE FOR AIDING AND ABETTING CONDUCT
OCCURRING OUTSIDE OF THE UNITED STATES.
This court should affirm the decision of the Thirteenth Circuit and dismiss this
action for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P.
12(b)(6). In order to survive a motion to dismiss, the facts, if true, must state a facially
plausible claim. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Petitioner cannot state a
valid cause of action under the Alien Tort Statute (“ATS”) and this Court should
accordingly dismiss her complaint.
The ATS provides, in its entirety 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.A. § 1350. Four separate
grounds justify dismissal of the ATS claims here.
First, the law of nations does not recognize corporate liability; therefore, the ATS
cannot extend liability to corporate actors for “law of nations” violations. Before
imposing liability on a given actor, the courts must determine whether that actor would
be liable under international law. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 n. 20
(2004). Because the “law of nations” does not recognize corporate liability, this Court
must refrain from a cause of action unavailable under customary international law. See
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 120-21 (2d Cir. 2010).
Second, the ATS does not allow aliens to hold corporations liable for violations
that the Torture Victim Protection Act (“TVPA”) forecloses to citizens. The TVPA
plainly excludes corporations from liability for aiding and abetting torture and
! -!
extrajudicial killing. See Aziz v. Alcolac, Inc., -- F.3d --, 2011 WL 4349356 *3 (4th Cir.
Sep 19, 2011). Absent a clear legislative statement to the contrary, this Court should not
presume that the law furnishes a remedy to an alien that it denies to a citizen.
Third, claims for aiding and abetting foreign powers will necessarily invoke
political questions beyond the cognizance of the judicial branch. The Constitution
commits the lead role in foreign policy decisions to the Executive Branch. See Baker v.
Carr, 369 U.S. 186, 211 (1962). Finding aiding and abetting liability would require the
judiciary to condemn the actions of foreign powers, unnecessarily interposing the
judiciary in a field better left to Executive action alone. Furthermore, holding private
parties liable for aiding and abetting violations directly undercuts the ATS’s primary
purpose of avoiding conflicts with foreign powers. See Ali Shafi v. Palestinian Authority,
642 F.3d 1088, 1099 (D. C. Cir. 2011) (Williams, J., concurring).
Finally, if the ATS applies to extraterritorial conduct, then that conduct must be
the sort for which the courts domestic courts routinely have jurisdiction over aliens.
Under the canon of extraterritoriality, this Court applies statutes extraterritorially
pursuant only to a clear Congressional command. See Morrison v. Nat'l Austrl. Bank
Ltd., 130 S. Ct. 2869, 2877-78, 177 L. Ed. 2d 535 (2010) (“[w]hen a statute gives no
clear indication of an extraterritorial application, it has none”). Neither the language of
the ATS nor its history provide for the statute to apply extraterritorially. See Doe VIII v.
Exxon Mobil Corp., -- F.3d --, 2011 WL 2652384 at *52 (D.C. Cir. July 8, 2011)
(Kavanaugh, J., dissenting in part). Even if the ATS does apply to some extraterritorial
conduct, the federal courts should hear claims arising in other jurisdictions only where
there is a clear norm for domestic tribunals to hear the violation at issue. None of the
! )!
violations in the instant case fall within the “universal jurisdiction” of domestic courts,
and so the claims should be denied.
This Court has cautioned that the recognition of any norm of international law is
subject to “vigilant doorkeeping.” Sosa, 542 U.S. at 729. With that vigilance in mind,
Petitioner’s claim is shut out here. The decision of the Thirteenth Circuit should be
affirmed.
A. The ATS does not apply to corporations because corporate liability is
unrecognized under the law of nations.
Corporations cannot be liable under the ATS where they are not liable under the
law of nations. In determining whether a norm is actionable under the ATS, this Court
asks whether customary international law extends liability for the violation of that norm
to a given actor. Sosa, 542 U.S. at 732. This Court requires that international law norms
be “specific, universal, and obligatory” before the courts can apply them under the ATS.
Id. at 734. International tribunals have not recognized corporate liability with anything
approaching that level of certainty, and thus, corporate liability does not lie under the
ATS. See Kiobel, 621 F.3d at 120-21.
1. This Court must look to international norms to determine whether
a given private actor can be held liable under the “law of nations.”
A given actor should be liable under the ATS only where customary international
law would also hold that actor liable. In Sosa, this court noted that lower courts must
consider “whether international law extends the scope of liability. . . to the perpetrator
being sued, if the defendant is a private actor such as a corporation or individual” Sosa,
542 U.S. at n. 20, 760 (“The norm must extend liability to the type of perpetrator (e.g., a
private actor) the plaintiff seeks to sue.”) (Breyer, J. concurring). The lower courts have
! ,!
not agreed on how to apply this standard. The D.C. Circuit has interpreted the language
as establishing a dichotomy between state and private actors, without any room to
differentiate actors within each group. See Doe, 2011 WL 2652384 at *30. In contrast,
the Second and Thirteenth Circuit have followed this Court’s language by inquiring into
whether the given actor before the court would be liable under customary international
law. R. 18-19; Kiobel v. Royal Dutch Petroleum Corp., 621 F.3d at 121-22, reh'g denied,
642 F.3d 268 (2d Cir. 2011); see also Flomo v. Firestone Natural Rubber Co., LLC, 643
F.3d 1013, 1017 (7th Cir. 2011) (noting the dispute but declining to reach a resolution);
Doe, 2011 WL 2652384 at *55 (Kavanaugh, J., dissenting in part). By focusing the
inquiry on the specific party before the court, these circuits have avoided the
“inconceivable” result “that a defendant who is not liable under customary international
law could be liable under the ATS.” Kiobel, 621 F.3d at 121-22.
This court should endorse the standard from the Second and Thirteenth Circuit
and impose liability only when the given actor would be liable before an international
tribunal. By refusing to differentiate among various state and private actors, the D.C.
Circuit’s standard ignores both precedent and common sense. ATS litigation is not the
only area in which the courts differentiate between state and private actors. For example,
Section 1983 litigation requires this court to determine whether parties act on behalf of
themselves or the state. See 42 U.S.C. § 1983 (West 2010). However, in the Section 1983
context, this Court recognizes that certain state actors are treated differently than others.
See e.g. Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998) (local legislators absolutely
immune in legislating); Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (prosecutors
absolutely immune in initiating prosecutions). Just as this Court differentiates between
! 2!
state actors to determine liability in the Section 1983 setting, it should differentiate
between private actors in determining liability under customary international law.
Differentiating within the larger groups of state and private actors also fits with
common sense. This Court has long noted that “international law is part of our law.” The
Paquete Habana, 175 U.S. 677, 700 (1900). It would be strange if the federal courts were
intended to use international law to determine causes of action, but then throw out
international law in determining whom those causes of action could be asserted against.
This Court must not apply international standards against parties who are immune in
international courts, lest this Court practice the kind of judicial innovation it so clearly
warned the lower courts against. See Sosa, 542 U.S. at 726 (“the general practice has
been to look for legislative guidance before exercising innovative authority over
substantive law”).
2. There is no sufficiently clear, specific, universal, and obligatory
norm of corporate liability under customary international law.
Corporations cannot be held liable under customary international law. The ATS
applies only to the “‘customs and usages of civilized nations,’ that are ‘specific,
universal, and obligatory’ and ‘accepted by the civilized world and defined with a
specificity comparable to the features of the 18th-century paradigms [of safe violation of
safe conducts, infringement on the rights of ambassadors, and piracy].” Flomo, 643 F.3d
at 1016 (quoting Sosa, 542 U.S. at 732, 734, 735) (internal citations omitted). This high
standard places the burden “of establishing a norm of customary international law [on]
those wishing to invoke it, and in the absence of sources of international law endorsing []
a norm, the norm simply cannot be applied.” Kiobel, 621 F.3d at 120-21. Because
! 1!
international customary law does not recognize corporate liability with the high degree of
certainty required by Sosa, liability is improper under the ATS.1
International tribunals have rarely, if ever, imposed liability on corporations.
Lower courts often turn to the decisions of international criminal tribunals in determining
the norms of customary international law. The decisions of the International Military
Tribunal at Nuremberg (“Nuremberg tribunal”) and the International Criminal Tribunals
for Yugoslavia (“ICTY”) and Rwanda (“ICTR”) are thought to be especially important
sources of customary international law. See Exxon, 2011 WL 2652384 at *13, *16. The
ICTY and ICTR provide particularly good guidance because they are “mandated by their
charter to apply only customary international law.” Id. at * 16. In addition to being
authoritative sources of customary international law, these three tribunals have one other
factor in common: none recognizes corporate liability. See Kiobel 621 F.3d at 131 (“[w]e
find it particularly significant that no international tribunal of which we are aware has
ever held a corporation liable for a violation of the law of nations.”) (emphasis original).
Although the lower courts have hotly contested the issue, a review of the
Nuremberg tribunal shows a deliberate choice to ignore corporate liability. The
Nuremberg tribunal primarily focused on the punishment of individuals. See Kiobel, 621
F.3d at 119. Although the Nuremberg tribunal considered the criminality of certain
organizations, such as the SS and the Gestapo, the declared criminality of a group served
only as a mechanism to more easily prosecute its individual members. See Id. at 134.
Indeed, the London Charter established the tribunals to have jurisdiction “to ‘try and
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!.!IJH!7>"&?!A<@>7!&%%&>H=7?Q!("'"=7H>%>H7HK!7J"'!6<@>7V'!KHA"'"<=!"=(!"#"$%&'()&"#%*(+,(-.!0!33!
4#5#!330!.)*!5#!67#!891!:-*.*;W!5HH!M#!.,#!M&7JH>!7J&=!>HA<L="X"=L!A<>%<>&7"<='!&'!=&7@>&?!
%H>'<='0!7J"'!6<@>7V'!J<?K"=L!'"(%?Q!JH?K!7J&7!7JH!7>&K"7"<=!<R!Y">'7!F(H=K(H=7!>"LJ7'!R<>!
A<>%<>&7"<='!'J<@?K!=<7!ZH!&?7H>HK!Z&'HK!<=!7JH!&K$&=7&LH'!<R!7JH!A<>%<>&7H!R<>(#!!"#"$%&'(
)&"#%*0!.)*!5#67#!&7!8//0!/*,#!
! 9!
punish’ only ‘individuals or members of organizations.’” Exxon, 2011 WL 2652384 at
*56 (Kavanaugh, J., dissenting in part) (quoting Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis art. 6, Aug. 8, 1945, 59
Stat. 1544, 82 U.N.T.S. 280).
While the some governmental organizations were charged as a matter of
prosecutorial convenience, no corporations were ever charged at Nuremberg. See Exxon,
2011 WL 2652384 at *56 (Kavanaugh, J., dissenting in part); Kiobel, 621 F.3d at 134.
For example, the I.G. Farben corporation, which operated the concentration camp at
Auschwitz, was specifically excluded from liability before the Nuremberg tribunals. See
Kiobel, 621 F.3d at 135. In issuing judgment over a number of Farben executives, the
Tribunal noted that, “the corporate defendant, Farben, is not before the bar of this
Tribunal and cannot be subjected to criminal penalties in these proceedings.” Id. (8 Trials
of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law
No. 10 (“The Farben Case ”) 1153 (1952)). Some lower courts have focused on language
in the Farben Case that, “[t]he action of Farben and its representatives, under these
circumstances, cannot be differentiated from acts of plunder or pillage committed by
officers, soldiers, or public officials of the German Reich.” Exxon, 2011 WL 2652384 at
*32 (quoting The Farben Case, 8 Trials of War Criminals at 1140); Kiobel 621 F.3d at
180 (Leval, J., dissenting). But any inference of corporate liability to be drawn from this
statement is negated by the lack of any corporate sanctions by the Nuremberg tribunal
and its express admonition that Farben was not on trial.
Being able to point to no norm of corporate liability through the Nuremberg
tribunals, several of the lower courts have erroneously relied on the Allied Control
! 8!
Council Laws to establish norms of corporate liability. See Exxon, 2011 WL 2652384 at
fn. 42 (noting Control Council Laws No. 39, 47, and 57 pertained to dissolving
corporations); Flomo, 643 F.3d at 1017 (looking at the dissolution of Farben and other
corporations in Control Council Laws No. 2 and No. 9). However, those opinions offer
no explanation as to why the Control Council Laws should serve as a source for
international law norms. Control Council Laws include provisions like “An Increase in
Telephone and Telegraph Rates” (No. 20); “Tax on Beer and Matches” (No. 28); and
“Census of the German Population” (No. 33). 2 Unlike the Nuremberg tribunals, which
had a plainly judicial character, the Control Council Laws present something more akin
to legislative or executive decision-making. Unlike the courts, which are constrained by
the law as it exists, legislative and executive bodies may freely innovate. In their search
for “specific, universal, and obligatory” norms, then courts should look to judicial, not
legislative, bodies for guidance.
Even if the Control Council Laws did provide evidence that corporate liability
was once the norm, the charters for the ICTY and ICTR indicate that norm no longer
applies today. By the express terms of their charters, the ICTY and the ICTR apply only
to natural persons. See Kiobel, 621 F.3d at 136, (noting that both charters adopted natural
person limitation proposed in U.N. Secretary-General’s report); Exxon, 2011 WL
2652384 at *56 (Kavanaugh, J., dissenting in part). In fact, the drafters of the ICTY
specifically rejected a proposal to include corporate liability. Kiobel, 621 F.3d at 136.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!-!6<=7><?!6<@=A"?!B&C!D<#!-*0!EF=!G=A>H&'H!"=!IH?H%J<=H!&=K!IH?HL>&%J!M&7H'0N!O&>AJ!-*0!./,1!&=K!6<=7><?!6<@=A"?!B&C!D<#!-80!EI&+!<=!PHH>!&=K!O&7AJH'0N!O&Q!.*0!./,1!&>H!
>H%>"=7HK!"=!)
! /!
Even if corporate liability existed after the dissolution of the Nazi government, the ICTY
and ICTR show that the international community does not accept that norm today.
Finally, a brief survey of relevant international treaties confirms the absence of
corporate liability under customary international law. For example, the Rome Statute,
which established the International Criminal Court, makes no provision for corporate
liability. See Kiobel, 621 F.3d at 119. Although the French delegation had proposed that
the Rome Statute grant jurisdiction over juridical persons, that proposal was rejected
because many nations do not have such liability. Id. at 119, 137; Khulumani v. Barclay
Nat’l Bank Ltd., 504 F.3d 252, 323 (2d Cir. 2007) (Korman, J., dissenting in part).
Some other treaties have imposed corporate liability in very limited contexts, but
the prospect of corporate liability for human rights violations has been expressly rejected.
See Kiobel, 621 F.3d at 138. Indeed, the United Nations has recently noted that “States
have been unwilling to adopt binding international human rights standards for
corporations.” Exxon, 2011 WL 2652384 at *57 (Kavanaugh, J., dissenting in part)
(quoting United Nations Report of the Special Representative of the Secretary General on
the Issue of Human Rights and Transnational Corporations and Other Business
Enterprises ¶ 44, U.N. Doc. A/HRC/4/35 (Feb. 19, 2007)). Where the nations do not
recognize corporate liability, the law of nations does not impose it.
Ultimately, the ATS does not empower the courts to remedy human rights abuses,
it empowers them to apply the “law of nations.” 28 U.S.C. § 1350; Sosa, 542 U.S. at 728
(noting that the Senate has “expressly declined” to give the courts a role in “interpreting
and applying international human rights law”); see also Sosa, 542 U.S. at 747 (Scalia, J.,
concurring) (“creating a new federal common law of international human rights is a
! .*!
questionable enterprise”). Because the “law of nations” does not provide for corporate
liability, this court cannot either. See Sosa, 542 U.S. at 728 (“[w]e have no congressional
mandate to seek out and define new and debatable violation of the law of nations”); First
Nat’l. City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 630 (1983)
(“the Court has consistently refused to give effect to the corporate form where it is
interposed to defeat legislative policies”). Congress may amend this policy if it chooses
to, but in the meantime the actual perpetrators of human rights violations will have to feel
the sting of liability without hiding behind the corporate form. See Correctional Services
Corp. v. Malesko, 534 U.S. 61, 71 (2003) (holding that deterrence rationale favors
personal, rather than corporate, liability in Bivens actions).
B. The ATS does not provide a remedy for claims covered under the TVPA.
Aliens cannot recover from corporations for alleged torture or extrajudicial killing
under the ATS where citizens could not recover under the Torture Victim Protection Act
(“TVPA”). The TVPA provides a cause of action to any individual who suffers torture or
extrajudicial killing at the hands of “an individual [acting] under actual or apparent
authority, or color of law, of any foreign nation.” 28 U.S.C. § 1350, note § 2(a). The
circuit courts have been nearly unanimous in holding that the TVPA bars corporate
liability. Aziz, F.3d, 2011 WL 4349356 at *3; Mohamad v. Rajoub, 634 F.3d 604, 607
(D.C. Cir. 2011); Bowoto v. Chevron Corp., 621 F.3d 1116, 1126 (9th Cir. 2010); but see
Romero v. Drummond Co., Inc., 552 F.3d 1303, 1315 (11th Cir. 2008) (asserting
corporate liability under TVPA without offering reasoning for its conclusion). Both the
plain text and the legislative history support the majority view. Because the legislature
! ..!
enacting the TVPA would not have intended different remedies for aliens and citizens
under the ATS, the torture and extrajudicial killing claims should be dismissed.
A plain reading of the TVPA shows that corporations are exempt from liability.
The statute uses the term “individual” to apply both to the violator of the statute and to
the victims of torture and extrajudicial killing. 28 U.S.C. § 1350, note § 2(a). When the
statute uses the word “individual” in reference to a victim, it necessarily refers to a
natural person because, “[c]orporations, of course, cannot be tortured.” Bowoto, 621 F.3d
at 1127. Absent a clear intent to the contrary, identical words in a statute are assumed to
have the same meaning; therefore, if the “individual” victim is a natural person, then the
“individual” aggressor should be a natural person as well. Comm’r of Internal Revenue v.
Lundy, 516 U.S. 235. 250 (1996). This comports with the plain meaning of the word
“individual” as well as the Dictionary Act, which defines the term “persons” as including
“corporations. . . as well as individuals.” Aziz, F.3d, 2011 WL 4349356 at *4 (quoting 1
U.S.C. § 1); Mohammad, 634 F.3d at 607.
The legislative history confirms the correctness of the plain reading. In its draft
form before the House Foreign Affairs Committee, the TVPA was amended “to substitute
‘individual’ for ‘person’ in order to ‘make it clear [they were] applying [the Act] to
individuals and not to corporations.” Bowoto, 621 F.3d at 1127 (replacements original)
(quoting The Torture Victim Protection Act: Hearing and Markup before the H. Comm.
on Foreign Affairs on H.R. 1417, 100th Cong. 82, 85 (1988)). After the substitution, the
legislative history provides no evidence that Congress intended the statute to impose
corporate liability. Id. at 1127-28. Both the plain reading and legislative history confirm
that the majority view on corporate liability under the TVPA is the correct one.
! .-!
While the TVPA does not replace the ATS for all claims, it does limit federal
jurisdiction over claims of torture and extrajudicial killing. The House’s rationale for
keeping both the TVPA and the ATS was that, “torture and summary executions do not
exhaust the list of actions. . . covered [by the ATS]. [So,] [t]hat statute should remain
intact to permit suits based on other norms that already exist or may ripen in the future
into rules of customary international law.” Kadic v. Karadzic, 70 F.3d 232, 249 (2nd Cir.
1995) (quoting H.R.Rep. No. 367, 102d Cong., 2d Sess., at 4 (1991), reprinted in 1992
U.S.C.C.A.N. 84, 86) (emphasis added). This history indicates that the statute was
intended to leave the ATS intact for other norms, but to change the jurisdiction of the
federal courts over the specific claims covered by the TVPA. As one lower court judge
has noted, “it makes eminent sense to fashion the ATS so that aliens cannot recover in
U.S. court. . . in circumstances where U.S. citizens could not recover in U.S. court.”
Exxon, 2011 WL 2652384 at *60 (Kavanaugh, J., dissenting in part); see also Vance v.
Rumsfeld – F.3d --, 2011 WL 3437511 at *1 (7th Cir. 2011)(saying, in a different context,
“[i]t would be startling and unprecedented” for the United States to provide a remedy to
aliens that is foreclosed to citizens).
But beyond being eminently sensible, applying the standards equally between
aliens and citizens would fit with the intent of the enacting legislature. At the time the
ATS was passed, the prevailing belief was that the law was discovered by reason. Sosa,
542 U.S. at 722, 745 (“[the] positivist mindset [is] utterly foreign to the American
common-law tradition of the late 18th Century”) (Scalia, J., concurring). Prior to the
decision in Erie, the existence of a general federal common law was thought
unproblematic because the state and federal judiciary would “discover” the law in the
! .)!
same way. Louise Weinberg, Federal Common Law, 83 Nw. U. L. Rev. 805, 822 (1989).
The belief that the common law was discovered extended not only to judicial actions, but
also to legislation, which the First Congress viewed “as ‘declaratory’ of the same-pre-
existing law.” William Dodge, The Historical Origins of the Alien Tort Statute: A
Response to the “Originalists”, 19 Hastings Int’l & Comp. L. Rev. 221. Under this
regime, the law of nations, federal common law, and statutory law would all be presumed
to reach the same result. Thus, the Congress that enacted the ATS would never have
envisioned a system in which the law of nations furnished one set of rights while the
federal law furnished another for the same conduct.3
C. The claims at issue are beyond the judicial cognizance of the Federal Courts.
Even if corporate liability did apply to certain international law norms, liability
would still be inappropriate here. First, the aiding and abetting violations alleged here
will require this Court to pass on the legitimacy of the actions of foreign governments.
The political question doctrine bars the courts’ adjudication of such claims where finding
liability will encroach on the Executive Branch’s power in the field of foreign relations
and will undercut the war-avoidance purposes of the ATS. Second, even if the political
question doctrine did not bar the action here, the ATS does not clearly impose
extraterritorial jurisdiction and; to the degree that it does, that jurisdiction is properly
limited to violations for which there is universal jurisdiction in the world’s domestic
courts. Liability is simply inappropriate here.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!)!IJ"'!%><%<'"7"<=!"'!H'%HA"&??Q!7>@H!JH>H!ZHA&@'H!7JH!I\TF!&%%?"H'!7<!&?"H='!&=K!A"7"XH='!
&?"]H#!D<7!<=?Q!A<@?K!&?"H='!>HA<$H>!CJH>H!A"7"XH='!A<@?K!=<7W!7JHQ!A<@?K!>HA<$H>!@=KH>!7JH!
FI5!CJH>H!7JH">!>HA<$H>Q!"'!Z&>>HK!ZQ!7JH!I\TF0!CJ"AJ!"'!&=!&KKH=K@(!7<!7JH!FI5#!
! .,!
1. The political question doctrine requires the courts to abstain where a
party is accused of aiding and abetting a ruling regime.
Accusations of aiding and abetting a regime will always raise sensitive political
concerns and the resolution of those concerns is best left to the executive branch. For as
long as this Court has had judicial review, it has also recognized that certain political
questions can never properly be determined by the federal judiciary. Marbury v.
Madison, 5 U.S. 137, 170 (1803). Over time this Court has developed a number of
“independent tests” listed in descending order of importance:
“[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”
Vieth v. Jubelirer, 541 U.S. 267, 277-78 (2004) (plurality) (quoting Baker, 369
U.S. at 217). These factors, based in separation of powers concerns, take on particular
significance in the field of foreign relations. Baker 369 U.S. at 210, 211. Cases and
controversies that merely “touch[] foreign relations [do not] lie[] beyond judicial
cognizance.” Id. at 211. However, this Court has repeatedly recognized the President’s
lead role in the field of foreign policy and the importance of allowing the nation to speak
with one voice in the area. See e.g. American Ins. Ass’n v. Garamendi, 539 U.S. 396, 415
(2003); Baker, 369 U.S. at 211. These concerns become especially acute in ATS
litigation and this Court has warned that “the potential implications of foreign relations of
the United States of recognizing [] causes [of action] should make courts particularly
! .2!
wary of impinging on the. . . Legislative and Executive branches in managing foreign
affairs.” Sosa, 542 U.S. at 727. Although the circuit courts had initially allowed aiding
and abetting liability, the lower court offered the better-reasoned view when it held that
the question of aiding and abetting liability “should instead be addressed in the first
instance by the political branches.” R. 20-21; see Aziz, F.3d, 2011 WL 4349356 at *6
(noting that the circuit courts that addressed the issue had all allowed aiding and abetting
liability). The federal courts should abstain from deciding claims like those presented
here because any claim for aiding and abetting a political regime will necessarily trigger
the first Baker prong, and because the Executive is better suited to serve the ATS’s war-
avoidance rationale than is the Judicial Branch.
a. Foreign policy questions are textually committed to the Executive
branch, and that branch is better able than the courts to decide when
a regime has violated the law of nations.
The Executive’s foreign policy expertise is needed to navigate the challenges
posed by the variety of aiding and abetting liability asserted here. The conduct of the
nation’s foreign affairs are constitutionally committed to the political branches. Oetjen v.
C. Leather Co, 246 U.S. 297, 302 (1918). In areas of particular diplomatic sensitivity,
that constitutional commitment should become even more important. Aiding and abetting
violations present one such sensitive area. In order to find that a corporation has aided
and abetted the violations of the “law of nations,” a court will have to find that the
violations were actually committed by a foreign regime. This sort of finding raises a
number of concerns that the judiciary is ill-suited to address.
! .1!
First, as this Court noted nearly two centuries ago, when the United States has
chosen to remain neutral during another nation’s civil war, a judicial determination “that
the war prosecuted by one of the parties was unlawful [] would [] arrange [the United
States]. . . against that party.” United States v. Palmer, 16 U.S. (3 Wheat.) 610, 634-35
(1818). The power to declare that one side of a conflict is a belligerent or an ally properly
rests with the Executive Branch. Thus far that branch has not indicated which side it will
choose in the ongoing conflict, and this Court should not step in to ally the nation with
either side in the Moesian civil war.
Second, in many situations the mere existence of a lawsuit will create unnecessary
problems in diplomatically sensitive areas. Most courts have approached the political
question inquiry on a case-by-case basis. See e.g. Khulumani, 504 F.3d at 263. However,
in many situations the diplomatic harm may come from the lawsuit itself. When the
Executive is required to ask for abstention on a case-by-case basis, then even its silence
becomes a choice in favor of one side or the other. While case-specific decisions may be
appropriate in the majority of cases which touch on foreign policy, aiding and abetting
claims like those presented here touch on foreign affairs so directly that their resolution
should be left to the Executive as a matter of course.
Third, declaring that a nation has violated the “law of nations” is a fraught
decision even for the political branches. The declaration of a violation of customary
international law can have serious political repercussions. See e.g. Brian Knowlton,
House Panel Assails Genocide of Armenians, Defying Obama and Angering Turkey, New
York Times, March 5, 2010 at P4; see also Herreros v. Deutsche Afrika-Linian, 232 Fed.
Appx. 90, 96 (3d. Cir. 2007) (noting that enslavement of South African by Germans in
! .9!
early 20th century is the kind of “decisions which our courts have long considered
inappropriate for judicial review”). The Executive branch is textually entrusted with the
lead role in the foreign relations of the United States, and only it can traverse the difficult
path required in declaring violations of the law of nations.
Despite these reasons for preferring executive to legislative action, a number of
the lower courts have refused to apply the political question doctrine. In several cases, the
lower courts have heard cases despite the State Department’s clear requests to abstain.
See e.g. Exxon, 2011 WL 2652384 at *39 (refusing to dismiss claim because Executive
had not offered sufficiently recent statement requesting dismissal); Sarei v. Rio Tinto, 487
F.3d 1193, 1197 (9th Cir. 2007) (hearing case despite statement that continuation of
lawsuit “would risk a potentially serious adverse impact” on United States foreign
relations). Often the lower court opinions justify the decision not to abstain by reading
the ATS to give jurisdiction over all possible violations under the “law of nations.” See
e.g. Sarei, 487 F.3d at 1204 (“[g]iven that plaintiffs have properly alleged cognizable
[ATS] claims, it is not tenable to insist that the claims themselves are not entrusted to the
judiciary” under first Baker prong); Kadic, 70 F.3d at 249 (“[t]he department to whom
this issue has been ‘constitutionally committed’ is none other than our own-the
Judiciary”). These lower courts have erred in holding that the ATS entrusts the judiciary
with all law of nations claims.
Unlike a typical statute, the ATS lacks the specificity that would allow the
judiciary to freely disregard the interests of the Executive Branch. As a general rule, “the
greater the degree of codification or consensus concerning a particular area of
international law, the more appropriate it is for the judiciary to render decisions regarding
! .8!
it.” Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964). When an area is
highly codified, the court can focus on applying facts to those standards, rather than
focusing “on the sensitive task of establishing a principle not inconsistent with the
national interest or with international justice.” Id. But statutory interpretation under the
ATS differs from interpreting a typical statue. Rather than referring the judiciary to clear
statutory terms, the ATS empowers it to create federal common law. See Sosa, 542 U.S.
at 729. The courts should employ greater caution when creating a common law than
when they interpret the relatively clear meaning of a statute.
Questions directly affecting the nation’s foreign affairs are constitutionally
committed to the Executive Branch. Unlike most claims, aiding and abetting allegations
directly implicate the actions of foreign governments and ruling regimes. The ATS
provides the lower courts with the ability to hear claims in violation of the law of nations,
but its rooting in the common law gives reason for caution. Rather than allowing judicial
innovation over every ATS claim, this court should recognize that claims directly
implicating the actions of foreign leaders are better left in the hands of the Executive
Branch. In refraining from jurisdiction, the court does not diminish the authority given to
it under the ATS, but rather recognizes that demonstrable commitment of foreign affairs
powers to the Executive Branch.
b. The ATS is aimed chiefly at avoiding war, and that purpose would not
be served through aiding and abetting violations of the kind alleged
here.
ATS was created as a mechanism to avoid war and, this Court should not
recognize a variety of aiding and abetting liability that will serve only to enmesh the
federal courts in foreign conflicts. According to Blackstone, nations should recognize
! ./!
violations of the law of nations in order “that the peace of the world may be maintained.”
Sosa, 542 U.S. at 723 (quoting 4 Commentaries 68); see also Ali Shafi, 642 F.3d at 1099
(2011) (Williams, J., concurring) (stating that the offenses listed by Blackstone were
intended to reduce the risk of war). Under this view, the court should maintain
jurisdiction over suits , “where redress in American courts might preclude international
repercussions.” Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 788 (D.C.Cir. 1984)
(Edwards, J., concurring). However, whenever the imposition of liability would likely
threaten that peace, the courts should abstain. See Tel-Oren, 726 F.2d at 816 (Bork, J.,
concurring) (“[a]djudication of international disputes. . . over violence occurring abroad,
would be far more likely to exacerbate tensions than to promote peaceful relations”).
In the instant case, the war-avoidance rational of the statute simply is not met. As
between an aggrieved citizen and a ruling regime, the ruling regime will almost always
pose a greater threat to the safety of the United States than the threat posed by the citizen.
Yet, by denouncing the ruling regime’s actions via an aiding and abetting suit, this Court
would choose to sour relations with the more dangerous party.
To avoid that fate, this court should assert its jurisdiction only in cases where that
jurisdiction serves to lessen the potential for war. In applying that standard, courts would
retain jurisdiction over any case within the traditional categories (violations of safe
conducts, infringement on the rights of ambassadors, and piracy) as well as any case in
which the corporation committed the alleged violation directly. Meanwhile, the courts
would avoid inserting themselves into cases that call for passing judgment on the
legitimacy of the actions taken by governments and regimes. Undoubtedly, this might
reduce the human rights potential of the ATS. But the ATS is not a human rights statute;
! -*!
it is an anti-war statute. See Sosa, 542 U.S. at 728 (the Senate has “expressly declined” to
allow courts to interpret and apply human rights law); Sosa, 542 U.S. at 747 (Scalia, J.,
concurring) (casting doubt on the usefulness of common law human rights claims).
Nothing prevents Congress from passing a statute that would give the court jurisdiction
over human rights violations. However, that decision belongs to the political branches
and not the courts.
2. The ATS applies to extraterritorial conduct and, if at all, only in the
narrow class of cases that allow for universal jurisdiction.
The ATS does not apply to conduct committed in the borders of another territory and,
even if it did, liability would only be proper where the violator would be subject to
universal jurisdiction. Congressional legislation is not presumed to apply extraterritorially
absent clear evidence of a contrary intent. Exxon, 2011 WL 2652384 at *47 (Kavanaugh,
J. dissenting in part). This presumption is true even where given legislation applies to
aliens. EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) (abrogated by
statute). The ATS bears no mark of applying extraterritorially, and it should be subject to
the presumption against extraterritorial application. In fact, the history behind the
enactment of the ATS indicates that it was passed in response to two separate attacks on
foreign ambassadors that occurred on American soil. See Sosa 542 U.S. at 716-717
(detailing the “Marbois incident” and legislative aftermath); Exxon, 2011 WL 2652384
at *55 (Kavanaugh, J., dissenting in part). Of the three torts originally recognized within
the law of nations, two applied only on United States soil (violations of safe conducts and
infringements on the rights of ambassadors), while the other occurred on the high seas, a
jurisdictionally unique area that serves as “‘the common highway of all nations,’
! -.!
governed by no single sovereign.” Exxon, 2011 WL 2652384 at *52 (Kavanaugh
dissenting in part) (quoting The Apollon, 22 U.S. 362, 371 (1824)).
In spite of the limitations on the traditional causes of action under the ATS,
several lower courts have erroneously held that the ATS authorizes extraterritorial
application. See Flomo, 643 F.3d at 1025. Both circuits that have considered this issue
have relied, in part, on this Court’s decision to hear the Sosa case, where the alleged
violation occurred in Mexico. 542 U.S. at 698; Exxon, 2011 WL 2652384 at *9; Flomo,
643 F.3d at 1025. While this Court may not have dismissed the case on extraterritoriality
grounds, it also did not foreclose the issue. The lack of discussion in Sosa should not
affect this Court’s ability to fully consider the issue here.
Similarly, this court should not refuse to consider the issue simply because
Fluorburton is a citizen of the United States. The D.C. Circuit believed that the existence
of United States citizenship negated the extraterritoriality requirement. Exxon, 2011 WL
2652384 at *10. But the D.C. Circuit’s argument does pass scrutiny under this Court’s
presumption against extraterritoriality Morrison, 130 S. Ct. at 2877-78. This Court can
take it on judicial notice that most United States statutes apply to citizens of the United
States. If the presumption against extraterritoriality did not reach these statutes, then it
would be no presumption at all.
The Seventh Circuit’s reasoning is similarly unavailing. That Circuit reasoned
that, without “extraterritorial application [] the statute would be superfluous, given the
ample tort and criminal remedies against, for example, the use of child labor (let alone its
worst forms) in this country.” Flomo, 643 F.3d at 1025. This argument misses the mark
in two important ways. First, it assumes that the ATS is never violated on American soil.
! --!
Second, and more importantly, the argument presumes that the ATS must always stay
ahead of statutory innovations. The ATS should not be struck down simply because
Congress has provided a right of action for the customary law norms it would otherwise
protect.
Even if the ATS does apply extraterritorially, its application should be limited to
the offenses for which there is universal jurisdiction. When an alleged violator can be
punished in any nation’s courts, this Court has considered that fact “conclusive proof that
the offence is supposed to depend. . . upon the law of nations.” United States v. Smith, 18
U.S. 153, 162 (1820); see also Sosa, 542 U.S. at 762 (Breyer J., concurring) (“in the 18th
century, nations reached consensus not only on the substantive principle that acts of
piracy were universally wrong but also on the jurisdictional principle that any nation that
found a pirate could prosecute him”). The Restatement (Third) of Foreign Relations
recognizes a number of violations that provide for universal jurisdiction today, including
“piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps
certain acts of terrorism.” § 404 Restatement (Third) of Foreign Relations Law IV, 1, A
In NT (1987). By limiting ATS jurisdiction to only those violations providing universal
jurisdiction, this Court could avoid each of the potential pitfalls mentioned in the Sosa
opinion.
In Sosa, this Court discussed five separate concerns inherent in recognizing new
causes of action under the law of nations. each of which would be either mitigated or
ameliorated if this court based ATS liability on the principles of universal jurisdiction.
Reliance on universal jurisdiction will ease the first two concerns addressed in Sosa,
which both relate to the amount of discretion vested in the lower courts. See Sosa, 542
! -)!
U.S. at 725-26. By limiting the causes of action to only those claims that can be brought
in nearly any domestic tribunal, this Court would provide the lower courts with a clearer
sense of direction to guide their search through customary international law. And by
referring to domestic jurisdiction, this Court will also provide the lower courts with a
clearer sense of what source of law should guide that inquiry.
Confining the ATS to universal jurisdiction also eases tension under the third
concern in Sosa, the hesitation at creating a private right of action. Id. at 727. By
recognizing only those private rights of action that are acknowledged among civilized
nations, the courts will not have to worry that they are inferring a private right that is
contrary to Congressional intent. Similarly, recognizing only torts of universal
jurisdiction, eases the Sosa court’s fourth cause for concern, the interference with foreign
relations. Id. at 727-28. The judiciary is less likely to interfere with the Executive or
Legislative branch when it is exercises a function that is held by courts worldwide.
Finally, the proposed limitation on ATS jurisdiction would ease the Sosa court’s
fifth concern, the encouragement of “greater judicial creativity.” Id. at 728. The ability to
creatively produce new “norms” of customary international law will be greatly reduced
where the courts must also identify a norm of prosecuting those norms universally in
domestic courts.
Petitioner has not pleaded any of the offenses of universal jurisdiction found in
the Restatement.4 Accordingly, her claims should be dismissed.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!,!F?7J<@LJ!7JH!A<(%?&"=7!@'H'!7JH!C<>K!ELH=<A"KHN!"=!7JH!R&A7'!'HA7"<=0!M#!-0!,0!TH7"7"<=H>!J&'!=<7!&??HLHK!ELH=<A"KHN!"=!&=Q!<R!JH>!A?&"('#!M#!238#!!
! -,!
II. THE THIRTEENTH CIRCUIT COURT OF APPEALS DID NOT
VIOLATE PETITIONER’S DUE PROCESS RIGHTS BY DENYING HER
MOTION TO RECUSE CHIEF JUDGE GARNETT.
Judge Garnett should not be recused, since he has neither a pecuniary interest nor
a probability of actual bias in the matter in controversy. Furthermore, granting
Petitioner’s request for recusal would do far more harm than good. Requiring Judge
Garnett’s recusal would inadvertently prevent potential judicial candidates from both
partaking in public debates and holding political roles. This would unconstitutionally
chill political discourse and erode the marketplace of ideas. Additionally, requiring Judge
Garnett’s recusal would impair the public’s faith in our longstanding history of judicial
neutrality. Upholding the lower court’s decision would emphasize the rare nature of
judicial recusal, and enable this Court to reinforce the presumption of judicial
impartiality.
A. Recusing Judge Garnett does not comport with the history of judicial
recusal.
Our founding fathers did not intend for judicial recusal to apply to circumstances
like those present in the instant case. In 1792, Congress passed the United States’ first
recusal statute. Act of May 8, 1792, ch. 36 § 11, 1 Stat. 275, 278-79 (repealed 1911). This
statute required recusal only when a judge represented a party or had a financial interest
in the suit. Id. The situations calling for recusal were even limited in the early years of
our republic. For example, this Court’s disregard of the potential recusal issue in the
seminal case of Marbury v. Madison provides further insight into the historically narrow
interpretation of recusal. Chief Justice John Marshall rendered the holding in Marbury,
even though Marshall’s prior failure to deliver federal judicial appointments was what
gave rise to the litigation. F. Aaron Ludwig, A Judge’s Failure to Recuse Himself, 48
! -2!
Duq. L. Rev. 929, 949-50 (2010). Marshall’s affiliation with the case highlights the
historically high standard of partiality necessary for judicial recusal.
Prior to Caperton, the Supreme Court only required recusal in two situations
under the Due Process Clause. The first situation occurs when a judge has a financial
interest in the outcome of the case. Tumey, 273 U.S. at 523. The second situation occurs
when a judge has participated in a prior proceeding related to the case. See e.g., In re
Murchison, 349 U.S. 133, 13 (1955) (finding that recusal was mandatory when a judge
acted as the grand jury and then proceeded to serve as the trial judge). Although both
situations still exist, they do not apply to the instant case. Judge Garnett neither had a
financial interest, nor participated in a prior proceeding relating to the case. Accepting
Petitioner’s argument would require this Court to go against nearly two centuries of
recusal jurisprudence.
B. Judge Garnett does not have a pecuniary interest in the outcome of this case.
Judge Garnett is not tempted to rule in favor of a specific party. This Court requires
recusal in “every procedure which would offer a possible temptation to the
average...judge to...lead him not to hold the balance nice, clear, and true.” Tumey, 273
U.S. at 532. A “possible temptation” occurs when a judge has a “direct, personal,
substantial, pecuniary interest” in a case. Id. at 523. In Tumey, this Court held that a
mayor, presiding as a judge, should be recused as a result of his pecuniary interest. Id. at
532. Tumey involved a statute that authorized the judge to receive court-assessed fines
levied against convicted defendants, but not against those who were acquitted. Id. at 523.
The judge had a direct pecuniary interest in the outcome, since he only received payment
for his services when he convicted a defendant. Id.
! -1!
Furthermore, judicial recusal does not solely depend on a judge’s direct financial
interest. In Ward, this Court applied the Tumey standard to a situation involving an
indirect financial interest. Ward, 409 U.S. at 60. This Court held that a mayor could not
preside as a judge over traffic violations when the court-assessed fines for such offenses
were contributed to the village’s budget. Id. at 58. Although the mayor’s salary did not
depend on his conviction rate, the mayor’s executive responsibility for the village’s
revenue gave him a possible temptation to convict. Id. at 60. The mayor was disqualified
as a result of his indirect financial interest in the outcome of these cases. Id.
In Aetna, this Court extended the principles from the aforementioned cases and
required recusal when a judge acted as “a judge in his own case.” Aetna, 475 U.S. at 824.
This Court disqualified a judge who ruled against Aetna Insurance on a bad-faith claim,
since the judge was the plaintiff in a nearly identical bad-faith claim pending against
another insurance company. Id. at 817. Although the judge did not have a direct financial
interest in the case against Aetna, the judge’s substantial pecuniary interest led him to act
as “a judge in his own case.” Id. at 824.
Unlike the judges in Tumey, Ward, and Aetna, Judge Garnett’s decision lacked
any bearing on his financial interest. The judges in the aforesaid cases wore two hats
simultaneously- the judges in Tumey and Ward were both mayors and judges, and the
judge in Aetna was a judge and a plaintiff in a nearly identical case. Judge Garnett was
not simultaneously presiding as a judge and as a Fluorburton board member, which
would conceivably be the factual equivalent to the judges in the aforementioned cases.
Instead, Judge Garnett’s sole role is as a judge. Judge Garnett has not been the
Undersecretary for the past four years. R. 21. Additionally, his Undersecretary position
! -9!
did not even involve the matter in controversy. R. 22. Judge Garnett is not confronted
with “possible temptation” since he does not have any interest in the outcome of this
case, let alone a financial one.
C. The case at bar does not present “extreme facts” demonstrating that Judge
Garnett had a probability of actual bias.
Judicial recusal is required in “extraordinary situations” involving a high
“probability of actual bias on the part of the judge.” Caperton, 129 S. Ct. at 2265. The
facts in the instant case do not amount to the “extreme facts” necessary for recusal. See
Id. at 2265-66. Specifically, Judge Garnett is not indebted to either party involved. In
additional to a lack of extreme facts, Judge Garnett does not have a probability of actual
bias, since the average judge in Garnett’s position is “likely to be neutral.” See Id. at
2262. Thus, upholding the lower court’s decision in the case at bar would emphasize
judicial neutrality and fortify the public’s trust in the judicial system.
1. The facts in the instant case are not extreme enough to warrant
recusal.
Petitioner erroneously broadens Caperton to apply to the case at bar. This Court
has held that “most matters relating to judicial disqualification [do] not rise to a
constitutional level.” Id. at 2259 (quoting FTC v. Cement Inst., 333 U.S. 683, 702
(1948)). In Caperton, this Court highlighted that the Due Process Clause only requires
judicial recusal in “extraordinary situations.” Caperton, 129 S.Ct. at 2265. Caperton was
nothing short of an “extraordinary situation” comprised of “extreme facts” and “rare
instances.” Id. at 2265-67.
In Caperton, Massey’s lawyers were in the process of appealing a $50 million
verdict, while Massey’s CEO was simultaneously donating approximately $3 million to
! -8!
Brent Benjamin’s election campaign for a seat on the West Virginia Supreme Court. Id.
at 2257. This contribution led to Benjamin’s victory, as it amounted to more than 60% of
the total financial support for his campaign. Id. Once elected, Justice Benjamin refused to
recuse himself from hearing Massey’s appeal in Caperton, and reversed the $50 million
dollar trial verdict against Massey. Id. at 2258. However, this Court granted certiorari and
held that there was “a serious, objective risk of actual bias that required Justice
Benjamin’s recusal.” Id. at 2265.
Contrary to Petitioner’s assertion, the extreme circumstances of Caperton do not
apply to the instant case. This Court’s intention of limiting Caperton to unique situations
is bolstered by the majority opinion’s thirteen repetitions of the words “extraordinary,”
“rare,” “extreme,” and “exceptional.” Caperton, 129 S. Ct. at 2263-67. The facts in the
instant case do not remotely constitute the “extreme facts” that Caperton sought to
address. See id. at 2266. Massey’s CEO contributed to Benjamin while Massey’s lawyers
were in the process of appealing a $50 million verdict. Id. at 2257. Unlike the
“coincidental” time frame in Caperton, the events underlying Petitioner’s motion
occurred eight years before Fluorburton filed its petition to leave for appeal and four
years before Judge Garnett was even appointed to his present position. R. 21. Thus, Judge
Garnett lacks the extreme quid pro quo situation that surrounded Judge Benjamin.
Additionally, the CEO of Massey’s “significant and disproportionate influence” in
Benjamin’s campaign raised “the probability of actual bias...to an unconstitutional level.”
Caperton, 129 S. Ct. at 2265. Contrary to the facts in Caperton, neither MOSOPP nor
Fluorburton possess any influence over Judge Garnett, much less the kind of “significant
and disproportionate influence” over a judge that would be advanced by a $3 million
! -/!
campaign contribution. R. 21-22; See Caperton, 129 S. Ct. at 2265. Although Judge
Garnett was the Undersecretary for Natural Resource Exploration and Development four
years prior to this litigation, he has never received any financial or personal incentives
from either party involved. R. 22. The extreme facts of Caperton lack any resemblance to
the facts in the case at bar.
2. Judge Garnett does not have a “probability of actual bias.”
The extreme facts of Caperton do not extend to the case at bar. Alternatively,
even if this Court were to apply Caperton, Judge Garnett lacks a probability of actual bias
and should not be recused. In Caperton, this Court held that recusal is required “when the
probability of actual bias on the part of the judge or decisionmaker is too high to be
constitutionally tolerable.” Caperton, 129 S. Ct. at 2259 (quoting Withrow v. Larkin, 421
U.S. 35, 47 (1975)). The Caperton Court broadened the “temptation to the average
judge” standard from Tumey and analyzed “whether the average judge in his position is
‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’”
Caperton, 129 S. Ct. at 2262; Tumey. 273 U.S. at 532.
Although this Court concluded that there was “a serious risk of actual bias” in
Caperton, the same cannot be said for the instant case. Caperton, 129 S. Ct. at 2263.
While the average judge would have a serious risk of actual bias towards a $3 million
dollar contributor, that risk is not present in Judge Garnett’s position. See Caperton, 129
S. Ct. at 2257. The average judge in Garnett’s position is likely to be neutral, since Judge
Garnett lacks any involvement in MOSOPP’s charges regarding Fluorburton. R. 22.
Furthermore, all federal judges, including Judge Garnett, take an oath to
“faithfully and impartially discharge and perform all the duties incumbent upon [them].”
! )*!
28 U.S.C. § 453 (2006). This oath emphasizes that judges are presumed to be capable of
distinguishing their personal values from their judicial duties. United States v. Kehlbeck,
766 F. Supp. 707, 713 (S.D. Ind. 1990). The average judge in Garnett’s position would be
fully cognizant of the oath’s implication. The average judge would be aware of the oath’s
presumption of impartiality; and thus, the average judge in Garnett’s position would lack
a probability of actual bias.
3. Requiring Judge Garnett’s recusal will weaken the public’s faith
in the judicial system.
Upholding the lower court’s decision enables this Court to strengthen the public’s
trust in judicial impartiality. Chief Justice Roberts feared that the majority’s decision in
Caperton would “inevitably lead to an increase in allegations that judges are bias,
however groundless those charges may be.” Caperton, 129 S. Ct. at 2274 (Roberts, C.J.,
dissenting). Chief Justice Roberts specifically expressed concern that lower courts would
incorrectly interpret Caperton to require recusal in unnecessary situations, such as due to
a judge’s “friendship with a party or lawyer, prior employment experience, membership
in clubs or associations, prior speeches and writings, [and] religion affiliation.” Caperton,
129 S. Ct. at 2268 (Roberts, C.J., dissenting). Regardless of whether these concerns are
well-founded, upholding the lower court’s decision in the instant case gives this Court an
opportunity to illustrate that Caperton should be narrowly applied to extreme situations.
The majority’s continuous reminder of the “extreme facts” in Caperton potentially
reveals this Court’s concern over lower courts broadening Caperton to require recusal in
unnecessary situations. See Caperton, 129 S. Ct. at 2265. Thus, upholding the lower
court’s decision in the case at bar will reinforce the guiding limitations provided in
Caperton, as well as strengthen the public’s confidence in judicial neutrality.
! ).!
D. Judge Garnett should not be disqualified for casting the final vote.
Contrary to Petitioner’s assertion, the fact that Judge Garnett decided the final
vote bears no relevance to recusal. Recusing a judge who casts the final vote is not the
standard for judicial disqualification. For example, although Justice Benjamin decided the
final vote in Caperton, this Court did not mention that this factored into its holding. See
Caperton, 129 S. Ct. at 2256. Instead, this Court stressed that the standard is the
probability of actual basis. Id. at 2257. Giving merit to the Petitioner’s flawed argument
that Judge Garnett should be recused as a result of his deciding vote would ultimately
weaken this Court’s emphasis on the probability of actual bias standard. Therefore, since
Judge Garnett does not have a probability of actual bias, he should be not recused for
casting the final vote.
E. Judge Garnett did not express opinions on the matter in controversy.
Judge Garnett has never taken a public stance on the litigation between MOSOPP
and Fluorburton. Even if Garnett were to take a public position on the matter in
controversy, judges have an obligatory ability to disregard personal beliefs in favor of
complying with the law. For example, Justice Scalia decided the final vote in Texas v.
Johnson to invalidate a flag-burning statute, despite his personal aversion for flag-
burners. Texas v. Johnson, 491 U.S. 397, 398 (1989). Justice Scalia publicized his
opinions on C-SPAN, where he announced that “if [he] were king, [he] would put [flag-
burners] in jail.” Debra C. Weiss, Scalia Continues Media Blitz, Tells Students ’I am not
a Moralist-in-Chief’, ABA J. (Apr. 10, 2008). Justice Scalia was able to overlook his
individual values and perform his duty as a judge.
! )-!
Scalia’s ability to fulfill his judicial duty in Johnson further supports the lower
court’s opinion in the instant case. Similar to Scalia, Garnett was on a widely televised
program. R. 25. However, unlike Scalia, Garnett did not take a public position on the
matter in controversy. R. 22. Judge Garnett’s public appearance pertained only to the
Garnett Commission’s report, which had no relation to MOSOPP’s charges regarding
Fluorburton. R. 22. Judge Garnett should not be recused since he has never taken a public
stance on the case at bar.
Furthermore, granting the Petitioner’s request would prohibit potential judicial
candidates from engaging in public debates on disputed legal and political issues. This
would drastically chill political speech and adversely affect the marketplace of ideas. A
judge should be recused if he publicly states his opinion about the merits of a case; a
judge should not be recused for merely engaging in political discourse. Judge Garnett did
not discuss any issues pertaining to the matter in controversy. R. 22. Requiring Judge
Garnett’s recusal would unconstitutionally penalize his inherent right of free speech.
CONCLUSION
For the forgoing reasons, this Court should affirm the judgment of the Court of
Appeals for the Thirteenth Circuit.
! ))!
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)
because:
x this brief contains 10,568 words, excluding the parts of the brief exempted by
Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Circuit Rule 32(b) and the type
style requirements of Fed. R. App. P. 32(a)(6) because:
x this brief has been prepared in a proportionally spaced typeface using
Microsoft Word, using Times New Roman, 12-point type.
/s/ Team 11 Attorney for Fluorburton, Inc. Dated: October 12, 2011
