International Human Rights Litigation in U.S. Courts, Second Edition

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Book Update: February 2008
by Beth Stephens

The second edition of International Human Rights Litigation, published in February 2008, reflects court decisions released as of January 2007, with brief mention of a few later decisions. The following update lists developments as of February 2008 that are not discussed in the book.


Cases and Topics Covered in This Update:

1. Khulumani v. Barclay Nat. Bank Ltd. -- aiding and abetting liability

2. Belhas v. Ya’alon -- former government officials and the FSIA

3. Corrie v. Caterpillar, Inc. -- political question

4. Doe v. Exxon Mobil Corp. -- deference to the executive branch

5. Suits against the U.S. government and government contractors

Rasul v. Myers
Mohamed v. Jeppesen Dataplan, Inc.
Ibrahim v. Titan Corp.
Arias v. Dyncorp

6. Jury verdicts and settlements

Jama v. Esmor Corporation
Xiaoning v. Yahoo!, Inc.
Abiola v. Abubakar
Estate of Rodriquez v. Drummond Co.

7. Bell Atlantic v. Twombly/Erickson v. Pardus -- notice pleading rules

8. Selected case updates:

John Roe I v. Bridgestone Corp.; Almog v. Arab Bank: motions to dismiss denied
Villeda Aldana v. Fresh Del Monte Produce, Inc.: motion to dismissed granted

9. Additional citations


1. Khulumani v. Barclay Nat. Bank Ltd., (need case number)
504 F.3d 254 (2d Cir. 2007) (petition for cert. pending)
On appeal from the district court’s dismissal of multiple lawsuits against corporations for abuses committed during the apartheid regime, two members of the Second Circuit panel issued a joint per curium opinion and the three judges each issued a separate opinion.
The two-judge majority:

  1. held that a claim for aiding and abetting a violation of customary international law can provide a basis for jurisdiction under the Alien Tort Statute (ATS) (see Chapter 10(B)(3)(a));
  2. vacated the district court’s denial of leave to amend the complaint; and
  3. declined to consider the possible application of the political question or international comity doctrines and the views of the U.S. and South African governments, because the district court did not resolve those issues and because the analysis may change after the complaint is amended. As a result, the majority did not address the question about the case raised by the Supreme Court in Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004) (discussing the possibility of “case-specific deference to the political branches.”). See Chapter 13.


Writing separately, the two judges in the majority disagreed about the law that governs aiding and abetting liability:
Judge Katzmann concluded that aiding and abetting liability in an ATS case is governed by international law, and that the international law standard requires that the defendant “(1) provides practical assistance to the principal which has a substantial effect on the perpetration of the crime, and (2) does so with the purpose of facilitating the commission of that crime.” Id. at 277. He specifically declined to decide whether federal common law might supply an alternative standard for aiding and abetting liability even if such liability did not exist under international law. Id. at 277 n.13.

Judge Katzmann’s opinion also includes useful discussions of (1) the difference between finding that the ATS affords jurisdiction over a claimed violation of international law and deciding whether to recognize a common-law cause of action to provide a remedy for the violation, id. at 266 (see Chapter 2A, 2B); and (2) the Supreme Court’s cautionary language as a part of the cause of action analysis, rather than as an independent limitation, id. at 265-66, 266 n.1 (see Chapter 3B(2)).

Judge Hall concluded that federal common law governs the standard for accessorial liability under the ATS, and that:
[L]iability should be found only where there is evidence that a defendant furthered the violation of a clearly established international law norm in one of three ways: (1) by knowingly and substantially assisting a principal tortfeasor, such as a foreign government or its proxy, to commit an act that violates a clearly established international law norm; (2) by encouraging, advising, contracting with, or otherwise soliciting a principal tortfeasor to commit an act while having actual or constructive knowledge that the principal tortfeasor will violate a clearly established customary international law norm in the process of completing that act; or (3) by facilitating the commission of human rights violations by providing the principal tortfeasor with the tools, instrumentalities, or services to commit those violations with actual or constructive knowledge that those tools, instrumentalities, or services will be (or only could be) used in connection with that purpose. Id. at 288-89.

Judge Korman, in a lengthy dissent, argues that the case should be dismissed in deference to the views of the U.S. and South African governments, following the “guidance” offered by the Supreme Court in Sosa. Id. at 295-311. He also concludes that the complaints do not adequately allege that the defendants acted under color of law or in violation of any norm sufficient to support recognition of a common law cause of action. Id. at 311-27. He concurs in the portion of Judge Katzmann’s opinion that develops a customary international law standard for aiding and abetting liability under the ATS. Id. at 337.
The district court decision is discuss in chapter 10B(3)(a).
A petition for certiorari is currently pending.

2. Belhas v. Ya’alon, 2008 WL 398465 (D.C. Cir. 2008):
Plaintiffs sued a former Israeli military official for the shelling of a U.N. compound in Qana, Lebanon in 1996 in which over 100 Palestinian civilian refugees were killed. The Israeli government submitted a letter to the court stating that Ya’alon’s actions were within the course of his official duties. The Circuit Court found that Ya’alon was immune from suit under the FSIA, rejecting appellants’ arguments (1) that the FSIA does not apply to former government officials; (2) that even if it does, a violation of fundamental international human rights norms can never be within the scope of official authority; and (3) that any such immunity does not apply to claims under the Torture Victim Protection Act. See Chapter 14A.

The issue of FSIA and former government officials is also pending in two cases currently on appeal in the Fourth and Second Circuits: Yousuf v. Samantar, 2007 WL 2220579 (E.D.Va.), and Matar v. Dichter, 500 F. Supp. 2d 284 (S.D.N.Y. 2007). See Chapter 14A.

3. Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir. 2007)
On appeal from the district court’s dismissal on multiple grounds, the Ninth Circuit first held that the political question doctrine is a “jurisdictional limitation imposed on the courts by the Constitution,” not just a prudential doctrine adopted “by the judiciary itself.” Id. at 981. As a result, “if a case presents a political question, we lack subject matter jurisdiction to decide that question. . . . We may therefore look beyond the face of the complaint to determine whether the district court properly dismissed plaintiffs' action under the political question doctrine.” Id. at 982. The court then applied the Baker factors, and found that the case did present a political question:
The decisive factor here is that Caterpillar's sales to Israel were paid for by the United States. . . . [T]hese sales were financed by the executive branch pursuant to a congressionally enacted program calling for executive discretion as to what lies in the foreign policy and national security interests of the United States. . . . Allowing this action to proceed would necessarily require the judicial branch of our government to question the political branches' decision to grant extensive military aid to Israel. It is difficult to see how we could impose liability on Caterpillar without at least implicitly deciding the propriety of the United States' decision to pay for the bulldozers which allegedly killed the plaintiffs' family members. Id.
See Chapter 13A.

4. Doe v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir. 2007)
The district court had dismissed the plaintiffs’ international law claims under the ATS, but denied defendants’ motion to dismiss the state common law tort claims. Defendants attempted to appeal the decision permitting the state claims to proceed, or, in the alternative, sought a writ of mandamus ordering the district court to dismiss the state claims. The Circuit Court (1) held that a district court's denial of a defendant's motion to dismiss on political question grounds is not an immediately appealable collateral order; and (2) denied the writ of mandamus, holding that the district court did not clearly and indisputably exceed its jurisdiction in refusing to dismiss under the political question doctrine. The court rejected the defendant’s characterization of the executive branch’s submission, holding that there was no clear conflict between the qualified concerns stated in the submission and the lower court’s decision to allow the state claims to proceed under restrictions that narrowed the claims at issue and limited the scope of discovery. Judge Kavanaugh (a legal advisor to the Bush administration before his appointment to the court) dissented. See Chapter 13A and Chapter 16. A petition for certiorari is pending, and the Supreme Court asked for the views of the Solicitor General. The case is set for trial in June 2008, however, and the Circuit Court denied defendants’ request for a stay.

5. Suits against the U.S. government and government contractors
Rasul v. Myers, 512 F.3d 644 (D.C. Cir. 2008)
Circuit court dismissed claims for torture of detainees at the military base in Guantanamo Bay, Cuba, holding that torture fell within the scope of employment of military personnel interrogations, for the purposes of substitution under the Federal Tort Claims Act. See Chapter 11B. The Court also held that, as aliens without property or presence in the United States, the detainees lacked any constitutional rights and could not assert Bivens claims (see Chapter 11A), and that the Religious Freedom Restoration Act did not apply to non-resident aliens (see Chapter 7E(9)).

Mohamed v. Jeppesen Dataplan, Inc., Civ. No. 07-02798 (Order Granting Motion to Dismiss, N.D. Cal. Feb. 13, 2008)
Plaintiffs sued the private corporation that provided air transportation that enabled the U.S. government to implement“extraordinary renditions,” pursuant to which plaintiffs were illegally taken to secret detention centers at which they were tortured. The court granted the United States’ motions to intervene, assert the state secrets privilege, and dismiss. See Chapter 11F.

Ibrahim v. Titan Corp., --- F. Supp.2d ---- (D.D.C. 2007), 2007 WL 3274784
In a lawsuit against two private corporations for abuse of detainees in Abu Ghraib prison in Iraq, the court applied the common law government contractor defense, which grants contractors the same immunities afforded to the U.S. government in certain situation. The court held that the defendants would be protected if they acted “under the direct command and exclusive operational control of the military chain of command such that they are functionally serving as soldiers,” but that “[w]hen the military allows private contractors to retain authority to oversee and manage their employees' job performance on the battlefield, no federal interest supports relieving those contractors of their state law obligations to select, train, and supervise their employees properly.” At *3. Applied to these defendants, the court granted Titan’s motion for summary judgment, but refused to grant summary judgment on the claims against CACI. The judge certified the decision for an interlocutory appeal. See Chapter 12F.

Arias v. Dyncorp, 517 F. Supp. 2d 221 (D.D.C. 2007)
In an action by residents of Ecuador against a U.S. contractor for injuries caused when herbicide which was sprayed to eradicate cocaine and opium in Colombia drifted across the border, the court held that the claims did not seek review of foreign policy or national security decisions by the executive branch and were therefore justiciable. The court was not swayed by a lengthy declaration submitted by the Department of State which stated that the litigation could cripple U.S. efforts to stem the flow of narcotics; provide a financial boon to international terrorist organizations; and significantly undermine relations between the United States and Colombia and other nations. See Chapter 16A, 16B(3). The court dismissed a torture claim, finding that the alleged injury did not constitute torture within the meaning of Torture Victim Protection Act. See Chapter 7D(1).

6. Jury verdicts and settlements
Abiola v. Abubakar, 2008 U.S. Dist. LEXIS 2937 (N.D. Ill.)
Plaintiffs settled a series of claims against a Nigerian general. According to the court, the Nigerian government funded the settlement but on the condition that the court vacate an earlier decision finding that the Nigerian courts were not an adequate alternative forum. See Chapter 15B. Published reports put the settlement amount at between $650,000 and $1 million. See Laolu Akande, Why Abubakar’s US Suit Ended, By Plaintiffs, at's+US+Suit+Ended,+By+Plaintiffs+&cpdate=200108

Jama v. Esmor Correctional Services, Civ. No. 97-3093 (Judgment, D.N.J. Dec. 7, 2007)
Immigrants detained in a private prison facility alleged a range of abuses. After 10 years of litigation, eight plaintiffs settled their claims, for amounts ranging from $20,000 to $100,000 (for a total of $560,000). One plaintiff, Hawa Abdi Jama, proceeded to trial. The jury found in her favor on a common law claim for negligent hiring, training and supervision and one claim under the Religious Freedom Restoration Act, awarding her $101,000.

Xiaoning v. Yahoo!, Inc., Civ. No. 07-02151 (Joint Stipulation of Dismissal, Nov. 9, 2007)
Chinese democracy advocates sued Yahoo!, alleging that they were detained and tortured after Yahoo! provided Chinese officials with access to private e-mail accounts and other identifying information. The case settled after company representatives testified at a congressional hearing; details of the settlement were not released.

Estate of Rodriquez v. Drummond Co., Civ. No. No. 02-0665 (Jury verdict, July 26, 2007) (appeal pending)
Plaintiffs sued an Alabama-based mining company, seeking to hold it responsible for the murder of three union leaders who represented the Drummond workers in Colombia. A jury entered a verdict for the defendant. Plaintiffs’ appeal challenges legal rulings and the judge’s refusal to allow testimony from four witnesses who could have linked Drummond officials to the paramilitary group that murdered the plaintiffs’ relatives.

7. Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007)/Erickson v. Pardus, 127 S. Ct. 2197 (2007)
A pair of Supreme Court decisions issued late in the spring of 2007 have thrown federal notice-pleading requirements into confusion. In Bell Atlantic v. Twombly, the Court seemed to apply a revised pleading rule, but left unclear whether that standard applied only to the antitrust claims at issue in that case. The Court denied that it was imposed a heightened pleading standard, in a somewhat cryptic footnote:

In reaching this conclusion, we do not apply any heightened pleading standard, nor do we seek to broaden the scope of Federal Rule of Civil Procedure 9, which can only be accomplished by the process of amending the Federal Rules, and not by judicial interpretation. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515 (2002) (quoting Leatherman v. Tarrant County Narcotics Intelligence andCoordination Unit, 507 U.S. 163, 168 (1993)). On certain subjects understood to raise a high risk of abusive litigation, a plaintiff must state factual allegations with greater particularity than Rule 8 requires. Fed. Rules Civ. Proc. 9(b)-(c). Here, our concern is not that the allegations in the complaint were insufficiently particular[ized], ibid.; rather, the complaint warranted dismissal because it failed in toto to render plaintiffs' entitlement to relief plausible. Id. at 1973, n.14.

Two weeks later, in Erickson v. Pardus, the Court also rejected a heightened pleading, providing support to those who viewed Bell Atlantic as limited to its antitrust context.

The lower federal courts have struggled to understand the significance of the two cases: Over 700 federal decisions had cited both Bell Atlantic and Erickson as of February 2008, and they varied significantly in their interpretation of the cases. Litigators must review the decisions of the courts in their circuit to see how they have applied these cases.

A few points offer an overview of the debate:
  1. In Bell v. Atlantic, 127 S. Ct. at 1968, the Supreme Court specifically disapproved of the oft-quoted language in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which stated that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Chapter 2A.
  2. Bell Atlantic emphasized the need for factual allegations that present a non-speculative claim for relief:
    While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact). Id. at 1964-65 (citations omitted).
  3. As applied to the Sherman Act claim at issue in Bell Atlantic, the Court held that the complaint must identify facts “suggestive enough to render a §1 conspiracy plausible.” Id. at 1965. The Court notes the importance of requiring “allegations plausibly suggesting (not merely consistent with) agreement,” in part because antitrust litigation can be complex and expensive, involving massive discovery. Id. at 1966-67.
  4. Two weeks later, in Erickson v. Paulson, the Court in a per curium opinion reversed dismissal of a pro se complaint because it departed from the requirements of rule 8(a)(2) by requiring that plaintiff plead “[s]pecific facts” to support a claim. 127 S. Ct. at 2200. Commentators and courts have disagreed as to whether Erickson indicates that Bell Atlantic is limited to the specific antitrust context, or whether Bell Atlantic establishes a plausibility requirement that is applicable more broadly.


For a sample of the ongoing debate, see, e.g., Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (“After careful consideration of the Court's opinion and the conflicting signals from it that we have identified, we believe the Court is not requiring a universal standard of heightened fact pleading, but is instead requiring a flexible plausibility standard, which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.”); Phillips v. County of Allegheny, --- F.3d ----, 2008 WL 305025, at *6-7 (3d Cir. 2008) (concluding that Twombly requirement of “plausibility” is related to Rule 8's requirement of a “showing”: “[A]ll of the foregoing discussion can be reduced to this proposition: Rule 8(a)(2) has it right. This rule requires not merely a short and plain statement, but instead mandates a statement ‘showing that the pleader is entitled to relief.’ That is to say, there must be some showing sufficient to justify moving the case beyond the pleadings to the next stage of litigation.” (citing Edward H. Cooper, Notice Pleading: The Agenda After Twombly, at 5 (January 2008) (unpublished manuscript)).

For a list of commentary on Twombly, see Scott Dodson, The Mystery of Twombly Continues, PrawfsBlog (Feb. 5, 2008), available at

8. Selected case updates
John Roe I v. Bridgestone Corp., 492 F. Supp. 2d 988 (S.D. Ind. 2007): Motions to dismiss denied
In action by adult and child rubber plantation workers in Liberia against multinational corporation, the court dismissed the adults’ claims for forced labor and cruel, inhuman or degrading treatment, but denied the motion to dismissed claims for forced child labor.
Almog v. Arab Bank, PLC, 471 F. Supp. 2d 257 (E.D.N.Y. 2007)
In action filed under the Anti-Terrorism Act (ATA) and the Alien Tort Statute (ATS), U.S. and foreign nationals filed suit for injuries and deaths inflicted in terrorist attacks in Israel, against Jordanian bank alleged to have knowingly provided banking and other services that facilitated the actions of terrorist organizations. The court denied the motion to dismiss claims for violations of ATA provisions prohibiting providing material support or resources to terrorists and financing terrorism; genocide and crimes against humanity; and other violations of international law.

Villeda Aldana v. Fresh Del Monte Produce, Inc., 2007 WL 3054986 (S.D. Fla. 2007): Motion to dismissed granted
The district court granted a motion to dismiss for forum non conveniens after a state court dismissed similar claims on that basis. The federal court held that, under the rules of collateral estoppel, it was bound by the legal and factual issues determined by the state court which were essential to its final judgment.

9. Additional citations
Head of state immunity: Chapter 14B, p. 374 n.53: But see Abiola v. Abubakar, 267 F. Supp. 2d 907 (N.D. Ill. 2003).

Last modified 

September 16, 2009