United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 2010 Decided June 14, 2011
No. 10-7024
ALI MAHMUD ALI SHAFI, INDIVIDUALLY AND AS NATURAL
GUARDIAN OF PLAINTIFF LAMIA ALI SHAFI, ET AL.,
APPELLANTS
v.
PALESTINIAN AUTHORITY, ALSO KNOWN AS PALESTINIAN
NATIONAL AUTHORITY, ALSO KNOWN AS PALESTINIAN
INTERIM SELF-GOVERNMENT AUTHORITY AND PALESTINIAN
LIBERATION ORGANIZATION,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-00006)
Robert J. Tolchin argued the cause and filed the briefs
for appellants.
Laura G. Ferguson argued the cause for appellees. With
her on the brief was Kevin G. Mosley. Richard A. Hibey and
Mark J. Rochon entered appearances.
Before: SENTELLE, Chief Judge, ROGERS, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Chief Judge SENTELLE.
Concurring opinion filed by Circuit Judge ROGERS.
Concurring opinion filed by Senior Circuit Judge
WILLIAMS.
SENTELLE, Chief Judge: Appellant Ali Mahmud Ali
Shafi and his wife, Shirin Ali Shafi, filed this action against the
Palestinian Authority (PA) and the Palestinian Liberation
Organization (PLO), seeking to recover damages under the
Alien Tort Statute, 28 U.S.C. § 1350. The Shafis alleged in the
district court and argued before us that the torture and “physical
and mental abuse” of Ali Shafi is actionable under that statute,
and also claimed on behalf of their minor child a derivative
negligence claim under Israeli law. The district court dismissed
the actions for failure to state a claim within the jurisdiction
conferred by the ATS. For the reasons set forth below, we
affirm the judgment of the district court and further conclude
that the district court did not err in declining to exercise pendent
jurisdiction over the alleged negligence claim under Israeli law.
I.
The Shafis brought this action in the United States
District Court for the District of Columbia seeking to recover
under the Alien Tort Statute, 28 U.S.C. § 1350 (ATS), for events
allegedly occurring between 2001 and 2002. According to the
allegations of the complaint, which we, like the district court,
are required to accept as true for purposes of the consideration
of a motion to dismiss, Ali Shafi, a Palestinian, served as an
agent and confidential informant for Israel for many years,
ending in 1994 when he moved from the West Bank to Israel.
Widespread violence broke out several years later in the West
Bank, the Gaza Strip, and Israel. This violence, which lasted
3
from September 2000 until 2005, is referred to in the complaint
as the “Intifada.”1 In September of 2001, in the midst of the
Intifada, Ali Shafi and his family returned to the West Bank to
visit his mother. On the night of September 21, Ali Shafi was
arrested by PA security officers and taken to a PA security
service building, where he was stripped, handcuffed, questioned
about his activities on Israel’s behalf, and ultimately beaten.
Severe beatings and other forms of physical torture continued
for several months. During this period, Ali Shafi was not
provided with a change of clothing and was not permitted to
bathe.
Three and a half months into his imprisonment, Ali Shafi
received a visit from representatives of the Red Cross. After this
visit, the physical abuse of Ali Shafi by the PA security guards
intensified. Then, in January 2002, Palestinian leader Raed al
Karmi—whom Israel had accused of masterminding violent
attacks against Israelis— was killed in an explosion in the West
Bank. PA officers accused Ali Shafi of having provided
information and assistance leading to the assassination of al
Karmi, and demanded a confession. Eventually, after continued
beatings, Ali Shafi signed the confession that had been prepared
for him and was formally charged by the PA with the
assassination of al Karmi and with spying for Israel. After a
trial that lasted half an hour, Ali Shafi admitted the charges in
hopes that he would be given a lenient sentence. Instead he was
sentenced to death. In March 2002, while awaiting transfer from
the prison in Qalqilya to Ramallah for his execution, Ali Shafi
escaped from captivity during an Israeli invasion of Qalqilya.
Seven years later, the Shafis initiated this action.
1
This period of violence is more properly termed the “Second
Intifada.” The First Intifada began in 1987 and ended in 1993. See,
e.g., Demian Casey, Note, Breaking the Chain of Violence in Israel
and Palestine, 32 Syracuse J. Int’l L. & Com. 311, 314 (2006).
4
Appellees moved to dismiss under Rule 12(b)(6) for
failure to state a claim for relief, Rule 12(b)(1) for lack of
subject matter jurisdiction, and Rule 12(b)(2) for lack of
personal jurisdiction. The district court granted the motions to
dismiss, not passing on the personal jurisdiction argument, but
determining that appellants had not pled any claim for relief
within the subject matter jurisdiction granted by the Alien Tort
Statute. We agree and affirm.
II.
We will dispense rather quickly with the first argument
offered by the appellees in the district court and before us as a
basis for dismissal. They argue that the Torture Victim
Protection Act of 1991 (TVPA) provides the only cause of
action available to victims of torture in preemption of any right
that might have otherwise existed as a common law claim within
the jurisdiction granted by the ATS. The TVPA creates a civil
action against “an individual who, under actual or apparent
authority, or color of law, of any foreign nation” subjects an
individual to torture or extrajudicial killing. 28 U.S.C. § 1350
note. The Act also requires exhaustion of remedies. Appellees’
argument is that by enacting this specific remedy, Congress
intended to take torture cases out of the general jurisdiction
conferred by the ATS and therefore preempt actions such as the
present one brought under the more general statute. They then
reason that because the defendants are not individuals acting
under actual or apparent authority or color of law, the current
action cannot be maintained under the TVPA. Therefore, they
contend, it must be dismissed.
The district court decided that the TVPA did not preempt
the present claims, but proceeded to determine that they must be
dismissed for failure to state claims within the jurisdiction
conferred by the ATS in any event. We think it unnecessary to
5
explore the preemption issue. All parties agree that the present
claims do not seek relief under the TVPA. The district court
held, and we will ultimately affirm, that they do not state claims
under the ATS. We therefore see no reason to belabor the
interpretation of the TVPA, which does not apply to the present
action; nor need we explore the question of preemption, as the
ATS claims will be dismissed in any event. We therefore
proceed to an analysis of appellants’ claims under the ATS.
III.
In analyzing the ATS and considering its applicability to
the claims of the Shafis, we note first the narrowness of its
language. The statute does no more than grant to the district
courts “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. § 1350. The statute creates no
jurisdiction over any general actions for tort or otherwise against
private actors under domestic law of this or any other nation, but
applies only to torts committed in violation of the laws of
nations or in violation of a treaty of the United States. We will
not spend much time or ink in rehashing the general history of
the Act, as the Supreme Court has fairly recently provided a
very full discussion in Sosa v. Alvarez-Machain, 542 U.S. 692
(2004). We commend to the reader that decision for a full and
scholarly treatment, while we confine our discussion to the
portions of Sosa determinative of this case, along with other
precedents relevant to the issue before us.
Both claims by the Shafis depend upon the same
fundamental question: Does the ATS provide jurisdiction in the
district court over a civil action by an alien for torture
6
committed by nonstate actors such as the PLO?2 We previously
considered this question in Tel-Oren v. Libyan Arab Republic,
726 F.2d 774 (D.C. Cir. 1984). Although the named party
defendant in Tel-Oren was a nation state, the decision dealt with
claims against the PLO, one of the two nonstate actors before us
in the present controversy. In a brief per curiam opinion, we
affirmed the decision of the district court dismissing the claims
brought against the PLO under the ATS. Id. at 775. The district
court had dismissed on dual grounds, one of which was the
subject matter jurisdiction question we consider today. The per
curiam opinion does not differentiate between the two bases, but
provides at least an authoritative framework for the dismissal
ordered by the district court herein.
Each of the three judges on the Tel-Oren court filed a
separate opinion, and the three opinions differ significantly in
their rationale. However, each of those separate opinions reach
the same conclusion on the controlling question. As Judge
Edwards put it: “I do not believe the law of nations imposes the
same responsibility or liability on non-state actors, such as the
PLO, as it does on states and persons acting under color of state
law.” Id. at 776. He therefore “vote[d] to affirm the District
Court’s dismissal for lack of subject matter jurisdiction.” Id. at
798.
Judge Bork differed from Judge Edwards in detail,
specifically in that he read Judge Edwards’s opinion as
supporting the proposition that the ATS, in addition to providing
jurisdiction, created a cause of action. Id. at 801. Judge Bork
believed that the ATS did not create “a cause of action sufficient
to support jurisdiction under [the ATS].” Id. at 799.
2
Here we discuss the two principal claims of the Shafis. We
will discuss the alleged pendent claim of the minor Ali Shafi child
separately below.
7
Thus, the two judges who directly addressed the question
held that, contrary to the arguments of appellants in that case
and in this, the ATS does not impose the same liability for
torture on nonstate actors as on nation states, and therefore, the
ATS does not provide jurisdiction against such defendants.3
The third member of the Tel-Oren court agreed in
affirming the dismissal, but would have done so on arguably
broader grounds. He was of the view that the case was
nonjusticiable, as it was controlled by the political question
doctrine. Id. at 823 (Robb, J., concurring). In short, the Tel-
Oren court, although diverse in approach, all provided support
for the proposition that torture claims against nonstate actors
were not within the jurisdictional grant of the ATS. Had nothing
occurred between the announcement of that decision in 1984
and the entry of our decision today, circuit precedent would
compel that we affirm the dismissal ordered by the district court.
The relevant events between 1984 and today not only do not
change our decision from the one entered in Tel-Oren, but
support a continuation of that precedent.
One intervening event discussed by the parties need not
be considered. Congress enacted the TVPA in 1992, but as we
note above, we need not construe that Act as the jurisdictional
issue governed by the ATS provides a sufficient rule of decision
for the question before us. However, of great relevance to our
inquiry is the Supreme Court’s decision in Sosa v. Alvarez-
Machain, 542 U.S. 692 (2004). In that case, Sosa, a Mexican
national, was one of a group of bounty hunters, who “abducted
Alvarez” in Mexico and took him “to El Paso, Texas, where he
was arrested by federal officers.” Id. at 698. After being
3
Judges Edwards and Bork differed in their rationales and
likely as to the scope of potential liability for ATS claims other than
torture.
8
acquitted of the underlying criminal charge against him, Alvarez
returned to Mexico but brought suit in the United States against
Sosa alleging, inter alia, a claim “under the ATS, for a violation
of the law of nations.” Id. at 698. Justice Souter, writing for the
Court, entered a thorough and scholarly analysis of the history
and effect of the Alien Tort Statute. The Sosa opinion first
addressed a question not answered by the per curiam opinion in
Tel-Oren. That is, Alvarez argued that the ATS “was intended
not simply as a jurisdictional grant, but as authority for the
creation of a new cause of action for torts in violation of
international law.” Id. at 713. The Sosa Court found that
reading “implausible” and held that “the statute was intended as
jurisdictional in the sense of addressing the power of the courts
to entertain cases concerned with a certain subject.” Id. at 713-
14.
Having established the fundamental nature of the power
granted in the ATS, the Sosa Court nonetheless rejected the
position of defendant Sosa that “the ATS was stillborn because
there could be no claim for relief without a further statute
expressly authorizing adoption of causes of action.” Id. at 714.
Therefore, the Court went on to consider what claims for relief
courts could entertain under the jurisdictional grant of the ATS.
In conducting that analysis, the Court considered the state of the
common law and international law at the time of the first
enactment of the ATS in the Judiciary Act of 1789. After
careful analysis, the Court concluded “that the First Congress
understood that the district courts would recognize private
causes of action for certain torts in violation of the law of
nations.” Id. at 724. The Court “found no basis” for believing
that Congress contemplated any examples of such torts beyond
three primary offenses theretofore identified by Blackstone: (1)
violation of safe conducts; (2) infringement of the rights of
ambassadors; and (3) piracy. Id. Three Justices, concurring
separately, believed that only those three causes of action would
9
be cognizable under the ATS to this day. See id. at 739-51
(Scalia, J., concurring, joined by Rehnquist, C.J., and Thomas,
J.). The majority, however, left open the possibility that nothing
“categorically preclude[s] federal courts from recognizing a
claim under the laws of nations as an element of common law.”
Id. at 725. While this might lend hope to appellants’ cause
before us, the Court went on to caution that “there are good
reasons for a restrained conception of the discretion a federal
court should exercise in considering a new cause of action of
this kind.” Id.
The Court then set out five reasons for exercising caution
in this area. First, the understanding of the common law has
changed since the ATS was enacted in 1789. At that time, the
prevailing conception of the common law was of a binding body
of law that existed separate and apart from the positive laws of
any jurisdiction; now, “there is a general understanding that the
law is not so much found or discovered as it is either made or
created.” Id. In other words, a judicial determination whether
an alleged violation of international law constitutes a violation
of common law actionable under the ATS is largely an exercise
of discretion rather than an exercise in construing pre-existing,
binding law. See id. at 720-21, 725-26. Second, as the
prevailing conception of the common law has changed over
time, so too has the prevailing conception of the role of the
courts in making it. Since Erie Railroad Company v. Tompkins,
304 U.S. 64 (1938), “the general practice has been to look for
legislative guidance before exercising innovative authority over
substantive law.” 542 U.S. at 726.
The final three reasons provided by the Sosa Court—all
related to the proper role of the judiciary in our tripartite
government—are particularly compelling. The Court’s third
reason is that the decision to create a private right of action for
violation of an international norm is better left to the legislature.
10
Id. at 727. “Even when Congress has made it clear by statute
that a rule applies to purely domestic conduct,” the Court said,
“we are reluctant to infer intent to provide a private cause of
action where the statute does not supply one expressly.” Id.
Fourth and relatedly, the potential foreign relations
consequences of making violations of international norms
actionable in United States federal court “should make courts
particularly wary of impinging on the discretion of the
Legislative and Executive Branches in managing foreign
affairs.” Id. Courts should exercise “great caution” in allowing
suits that would involve them in passing judgment on the
behavior of foreign governments towards their own citizens. Id.
at 727-28. Finally, the Court observed that “modern indications
of congressional understanding of the judicial role in the field
[of international law] have not affirmatively encouraged greater
judicial creativity.” Id. at 728. Congress has not seemed eager
to give the courts more latitude in defining violations of
international human rights law. Id.
Having set forth its reasons for directing judicial caution
in considering the recognition of claims beyond the historic
three categories of Blackstone, the Sosa Court went on to give
some guidance for the exercise of that caution by lower courts
considering allegations of such new torts against the law of
nations. “[W]e are persuaded that federal courts should not
recognize private claims under federal common law for
violations of any international law norm with less definite
content and acceptance among civilized nations than the
historical paradigms familiar when § 1350 was enacted.” Id. at
732 (citing United States v. Smith, 18 U.S. (5 Wheat.) 153, 163
n.h (1820) (illustrating the specificity with which the law of
nations defined piracy)). Conspicuously, the Supreme Court
noted that “[a] related consideration is whether international law
extends the scope of liability for a violation of a given norm to
the perpetrator being sued, if the defendant is a private actor
11
such as a corporation or an individual.” Id. at n.20. In so doing,
the Supreme Court cited Judge Edwards’s concurrence from Tel-
Oren for the proposition that there was insufficient consensus in
1984 that torture by private actors violates international law.4
Applying its cautious standard, the Sosa Court held that
the forceful abduction of Alvarez did not constitute a tort
cognizable under the statute. As the Court noted, Alvarez’s
approach “would support a cause of action in federal court for
any arrest, anywhere in the world, unauthorized by law of the
jurisdiction in which it took place.” Id. at 736. Similarly, the
proposition advanced by the appellants before us could open the
doors of the federal courts to claims against nonstate actors
anywhere in the world alleged to have cruelly treated any alien.
To recognize such a sweeping claim would hardly be consistent
with the standards of caution mandated by the Sosa Court.
We are advertent to the argument of appellants that other
circuits may have taken a broader view of the governing
questions. As we noted in note 4, supra, Kadic v. Karadzic, 70
F.3d 232 (2d Cir. 1995), did conclude that a sufficient
international consensus existed to support the implication of a
claim for relief within the jurisdiction conferred by the ATS for
genocide by nonstate actors. Also, the Eleventh Circuit in
Estate of Amergi ex rel. Amergi v. Palestinian Authority, 611
F.3d 1350 (11th Cir. 2010), took an arguably broader view than
we now express. However, neither of these binds us. Tel-Oren
and especially Sosa do. We further note that the Eleventh
Circuit, in dealing with the Common Article 3 question which
4
We note that the Supreme Court in footnote 20 offered for
comparison with Judge Edwards’s Tel-Oren opinion the opinion of the
Second Circuit in Kadic v. Karadzic, 70 F.3d 232, 239-41 (2d Cir.
1995), which concluded that genocide by private actors did violate
international law.
12
we discuss infra, recognized that “Common Article 3 is
exceedingly broad and at times vague; to afford ATS
jurisdiction for each and every violation of its wide-ranging
provisions would violate the command of Sosa that federal
courts exercise ‘vigilant doorkeeping.’” Id. at 1363.
The Shafis offer two grounds for distinguishing their
complaint from the claims asserted in Tel-Oren and Sosa.
Neither is persuasive. In their first claim for relief, they assert
that the defendants’ conduct is in violation of international
norms because it took place as part of an “armed conflict”
within the meaning of international law, and that the use of
torture breaches peremptory rules of armed conflict reflected in
Common Article 3 of the Geneva Conventions. Common
Article 3 applies “[i]n the case of an armed conflict not of an
international character occurring in the territory of one of the
High Contracting Parties.” It mandates that non-combatants
“shall in all circumstances be treated humanely,” and it
explicitly prohibits “violence to life and person, in particular . . .
cruel treatment and torture.” The first difficulty with the Shafis’
claim is that it is not obvious that Common Article 3 applies
under the circumstances they have alleged. The amended
complaint describes the Intifada as occurring in Israel, the West
Bank, and the Gaza Strip. Although Israel is a High Contracting
Party to the Geneva Conventions, the PLO is not,5 and the status
5
In June 1989, the PLO submitted documents to the
government of Switzerland, purporting to accede to the Geneva
Conventions on behalf of the State of Palestine. The Swiss
Government (in its capacity as depository of the Conventions) rejected
this attempt at accession, and informed the PLO that “[d]ue to the
incertainty [sic] within the international community as to the existence
or the non-existence of a State of Palestine,” the Swiss Government
was not able to determine whether the accession was valid. See Note
of Information, Government of Switzerland, Berne, Sept. 13, 1989.
13
of the PLO and the nature of Israeli relations with the territory
wherein the alleged torture took place, are subjects of continuing
dispute. These claims fit well within the reasons provided by
the Sosa Court for the cautious approach.
The Supreme Court made clear in Sosa that “the
determination whether a norm is sufficiently definite to support
a cause of action should (and, indeed, inevitably must) involve
an element of judgment about the practical consequences of
making that cause available to litigants in the federal courts.”
Sosa, 542 U.S. at 732-33. The potential foreign relations
consequences of making violations of international law, as
alleged by the Shafis, actionable in the courts of the United
States “should make courts particularly wary of infringing on
the discretion of the legislative and executive branches in
managing foreign affairs.” Id. at 726.
Finally, the Shafis argue that “the [Palestinian
Authority’s] conduct violated universally recognized and
applicable norms of international customary law prohibiting
torture by a public official.” App. Br. 22. That argument cannot
prevail. Appellants are advancing a theory that nonstate actors
can nonetheless be public officials. We need not decide whether
that is a possibility, as there is clearly no sufficiently universal
norm of international law supporting such a concept to support
the creation of an ATS cause of action for torture against a
nonstate actor, even if that actor falls into the appellants’
proposed expanded category of “public official.”
We do not purport to decide that the ATS can create no
actions against private actors. Sosa makes clear that the analysis
of whether “international law extends the scope of liability . . .
to the perpetrator being sued, if the defendant is a private actor”
pertains to the “given norm” being analyzed. 542 U.S. at 732
n.20. This conclusion is also evident from Sosa’s treatment of
14
Judge Edwards’s Tel-Oren concurrence, which acknowledged
a clear trend toward individual responsibility for violations of
international law norms, 726 F.2d at 794-95 (Edwards, J.,
concurring), specifically considered whether “torture today is
among the handful of crimes to which the law of nations
attributes individual responsibility,” id. at 795, and concluded
that it was not, id. As Sosa noted, Judge Edwards’s conclusion
was based on the “insufficient consensus in 1984 that torture by
private actors violates international law.” 542 U.S. at 732 n.20
(citing Tel-Oren, 726 F.2d at 791-95 (Edwards, J., concurring)).
As noted above, Sosa contrasted this conclusion with the Second
Circuit’s conclusion that there was a “sufficient consensus in
1995 that genocide by private actors violates international law.”
Id. (citing Kadic v. Karadzic, 70 F.3d 232, 239-41 (2d
Cir.1995)). By citing these two opinions, the Court apparently
did not mean to suggest that one was right and the other wrong,
or that both erred in considering the sufficiency of the
international law consensus for private actor liability on a norm-
specific basis; rather, by highlighting the lapse of eleven years
and the difference in the claims alleged, Sosa underscores the
context-dependent nature of the ATS analysis.
A categorical bar of ATS suits against nonstate actors
would be at odds with Sosa and with Judge Bork’s Tel-Oren
concurrence in another crucial respect. In providing his
“thoughts as to the possible original intention” underlying the
ATS, 726 F.2d at 815 (Bork, J., concurring), Judge Bork cited
Blackstone’s statement of the 18th-century paradigms of the
“principal offenses against the law of nations”: violation of safe
conducts, infringement of the rights of ambassadors, and piracy,
726 F.2d at 813 (citing 4 BLACKSTONE’S COMMENTARIES *68,
*72), with particular emphasis on piracy, id. at 813-15 & 814
n.23. Indeed, that piracy is among the core causes of action
contemplated by Congress in enacting the ATS appears beyond
dispute, see Sosa, 542 U.S. at 724 (majority opinion), 749
15
(Scalia, J., concurring in part), 760 (Breyer, J., concurring in
part); Tel-Oren, 726 F.2d at 781 (Edwards, J., concurring). Yet
piracy in violation of the law of nations is by definition
perpetrated by nonstate actors: “‘A pirate is one who roves the
sea in an armed vessel without any commission or passport from
any prince or sovereign state, solely on his own authority, and
for the purpose of seizing by force, and appropriating to himself
without discrimination, every vessel he may meet.’” United
States v. Smith, 18 U.S. (5 Wheat.) 153, 163 n.h (1820) (Story,
J.) (quoting 2 M.D.A. AZUNI, THE MARITIME LAW OF EUROPE
§ V:3 (1806)); see also Sosa, 542 U.S. at 732 (citing Smith’s
definition of law of piracy); Tel-Oren, 726 F.2d at 814 n.23
(Bork, J., concurring) (“‘[Piracy] could not be committed by
nations.’”) (quoting G.H. HACKWORTH, DIGEST OF
INTERNATIONAL LAW § 203 (1941)). The concept underlying
the ATS as a statute affording a civil remedy against piracy thus
cannot be reconciled with the notion that the statute only
recognizes claims against state actors. A second of Blackstone’s
principal offenses of the law of nations – infringement of the
rights of ambassadors – was also addressed in Sosa, which
stated that the enactment of the ATS was in part a “respon[se]”
to “a concern over the inadequate vindication of the law of
nations” after a nonstate actor assaulted a French diplomat in
Philadelphia (the “Marbois Affair”). 542 U.S. at 716-17. A
view of the ATS that only recognizes claims against state actors
thus finds no support in Judge Bork’s or Judge Edwards’s Tel-
Oren opinions, in Sosa, or in the widely accepted understanding
of Congress’s intent in enacting the statute.
That all said, it remains the case that applying the
cautious approach dictated by Sosa, and consistent with the
separate opinions of Judges Edwards and Bork in Tel-Oren, we
must hold that the district court properly dismissed this action.
As the Supreme Court noted in Sosa, Judge Edwards observed
in Tel-Oren that there was in 1984 an “insufficient consensus
16
. . . that torture by private actors violates international law.” 542
U.S. at 732 n.20. In 2011 it remains the case that appellants
have shown us no such consensus. The complaint does not state
a claim cognizable within the jurisdictional grant of the Alien
Tort Statute.
IV.
The Shafis’ third claim is a claim of negligence, brought
in the name of Ali Shafi’s minor daughter against both
defendants under the law of the state of Israel. The Shafis
brought this claim pursuant to 28 U.S.C. § 1367, which allows
a district court to exercise supplemental jurisdiction over any
claims related to claims over which the court has original
jurisdiction. After dismissing the Shafis’ ATS claims, the
district court dismissed the negligence claim as well, noting that
§ 1367(c) gave it permission to do so.
“Whether to retain jurisdiction over pendent . . . claims
after the dismissal of the federal claims is a matter left to the
sound discretion of the district court that we review for abuse of
discretion only.” Shekoyan v. Sibley Int’l, 409 F.3d 414, 423
(D.C. Cir. 2005) (internal quotation marks omitted). We can
hardly say that the district court abused its discretion by
declining to hear this claim. The claim arose from events in
another nation. The claim is made under the laws of that other
nation. All parties are citizens of other nations and have no
connection with the United States or specifically, with the
District of Columbia. Again, we must affirm the decision of the
district court.
17
Conclusion
For the reasons set forth above, we affirm the judgment
of the district court dismissing all claims.
ROGERS, Circuit Judge, concurring: I join the court’s
opinion and write separately only to add a note of caution with
regard to going beyond the Supreme Court’s decision in Sosa v.
Alvarez-Machain, 542 U.S. 692 (2004), by reading too much
into Sosa’s reference to the three norms of conduct identified by
Blackstone as violations of international law prior to 1789.
Although there is some historical evidence that the ATS as
originally conceived was designed to prevent international
incidents and harms to the foreign relations standing of the new
nation, id. at 715–16, no evidence has been identified to suggest
that there is any talismanic quality to the so-called “Blackstone
three,” Concurring Op. at 1 (Williams, J.). Indeed, in Sosa, the
Supreme Court recognized that other norms could be identified.
See 542 U.S. at 732. Our concurring colleague does not suggest
there is any authority in the ATS’s 230-year history for requiring
that Blackstone’s “three” bear a “family resemblance,”
Concurring Op. at 1 (Williams, J.), to one another or to these
other norms, offering only one possible way of characterizing
the analysis based on the premise—a dubious premise, given
Sosa—that without such resemblance the “three” provide “little
guidance for assessing candidates for ATS recognition,” id.
It would appear more prudent to take Sosa on its own terms.
As noted, the Supreme Court cited Blackstone’s “three” merely
as “historical paradigms” of norms that possessed sufficiently
“definite content and acceptance” at the time of the statute’s
enactment. 542 U.S. at 732; see also id. at 724. Separately,
Sosa discussed the historical basis for the ATS, including the
Marbois incident and other events surrounding the enactment of
the Judiciary Act of 1789, id. at 716–19, as well as the reasons
for judicial caution before recognizing an ATS cause of action,
id. at 725–28; see Op. at 9–10. Consequently, there is no basis
for concluding that Sosa prevents courts from recognizing an
international law norm unless its lineage can be traced to
Blackstone’s “three.” It is, therefore, just as plausible, and
likely more so, to conclude that Blackstone’s “three” were
2
distinct and independent norms of international law as it existed
in 1789, each of which may provide some insight regarding the
definiteness a norm developed after 1789 must possess to justify
recognition under the ATS.
Advisory or speculative musings on an issue neither briefed
nor argued nor necessary to resolve the instant appeal seem
particularly odd when the proffered analysis is bereft of
substantive grounding. Indeed, in acknowledging the need to
“expand[] the scope of the hypothetically triggered conflict to
include international incidents more generally,” or to “inquir[e]
whether the defendant’s alleged behavior might provoke war if
the United States occupied no more than an average position in
global power rankings,” Concurring Op. at 4 (Williams, J.), our
concurring colleague attempts to introduce vague and slippery
concepts into the ATS analysis. This despite Sosa’s emphasis
on the “definite content and acceptance” required of an
international law norm, 542 U.S. at 732, its discouraging of
“judicial creativity,” id. at 728, and its concern for “impinging
on the discretion of the Legislative and Executive Branches in
managing foreign affairs,” id. at 727. Considering traditional
principles of judicial restraint, especially in light of Sosa’s
specific grounds for caution in the ATS context, id. at 725-28,
further judicial analysis of the scope of the ATS is best
postponed until the issue is ripe.
WILLIAMS, Senior Circuit Judge, concurring: I concur in
the court’s opinion. But I think that in the context of this case
it is appropriate to probe a little more into the meaning of the
Alien Tort Statute (“ATS”), 28 U.S.C. § 1350. In Sosa v.
Alvarez-Machain, 542 U.S. 692 (2004), the Court made clear
that a current international law norm, if it is to find a home
under the ATS, must have no “less definite content and
acceptance . . . than the historical paradigms familiar when
§ 1350 was enacted.” Id. at 732. The Court was referring to
the three offenses against the law of nations that Blackstone
had identified as rules “overlapp[ing] with the norms of state
relationships,” namely “violation of safe conducts,
infringement of the rights of ambassadors, and piracy.” Id. at
715. There are two key features of the Court’s use of
Blackstone to infer criteria for international law norms that
might give rise to ATS claims. First, the opinion clearly sets
forth definiteness as only a minimum criterion (one of several)
for acceptance under the ATS: “Whatever the ultimate
criteria for accepting a cause of action . . . , we are persuaded
that federal courts should not recognize private claims under
federal common law for violations of any international law
norm with less definite content and acceptance . . . .”). Id. at
732 (emphasis added). Second, though the Court clearly
showed interest in analogizing from the three offenses, the
opinion does not link the Blackstone three into an
intellectually coherent family of wrongs. But unless the
Blackstone examples exhibit some sort of family resemblance,
they provide little guidance for assessing candidates for ATS
recognition.
It seems to me that the unifying feature of the three
offenses is that their punishment protects and facilitates the
system of international relations arising out of the
Westphalian view of national sovereignty, particularly with
respect to the avoidance and termination of war. Piracy
involves a rejection of the Westphalian system itself—pirates
2
remove themselves from the national building blocks of
international society (and hence are enemies of all mankind).
See 4 WILLIAM BLACKSTONE, COMMENTARIES *71 (noting
that the pirate has “renounced all the benefits of society and
government, and has reduced himself afresh to the savage
state of nature, by declaring war against all mankind, all
mankind must declare war against him”). Safe conducts, as
Blackstone notes, were a matter of “public faith”—a promise
by the sovereign that the entire nation needed to maintain—
violation of which may “be a just ground of a national war.”
Id. at *68-*69. Offenses against ambassadors are an affront to
the foreign sovereign himself, “as [ambassadors] represent the
persons of their respective masters, who owe no subjection to
any laws but those of their own country . . . .” 1 WILLIAM
BLACKSTONE, COMMENTARIES *253. Both of these,
moreover, facilitate negotiation among sovereigns, enabling
them to head off war and, once war has begun, to bring it to
an end.
The system of international relations implied from the
Blackstone three, then, is one in which the threat of war
among sovereigns is fully recognized, but international law,
especially safe conducts and the rights of ambassadors, protect
the system of diplomacy and intercourse among sovereign
nations, and thereby curb the risk of war or its prolongation. 4
WILLIAM BLACKSTONE, COMMENTARIES *66-*68 (“The law
of nations is a system of rules . . . to decide all disputes, to
regulate all ceremonies and civilities, and to insure the
observance of justice and good faith, in that intercourse which
must frequently occur between two or more independent
states, and the individuals belonging to each. This general
law is founded upon this principle, that different nations ought
in time of peace to do one another all the good they can, and
in time of war as little harm as possible, without prejudice to
their own real interests. . . . [O]ffences against this law are
3
principally incident to whole states or nations, in which case
recourse can only be had to war . . . .”).
The ATS’s ability to ensure adequate “vindication of the
law of nations,” Sosa, 542 U.S. at 717, fits this paradigm
nicely. The concern was that U.S. citizens might engage in
incidents that could embroil the young nation in war and
jeopardize its status or welfare in the Westphalian system. Id.
at 715-18. Similarly, foreign violators, if sufficiently linked
to the United States, could create an incident threatening the
United States’s peace. Indeed, under the Confederation, a
French adventurer had assaulted a representative of France,
one Francis Barbe Marbois, in Philadelphia. Lacking any
national power over the miscreant, the Continental Congress
directed the Secretary for Foreign Affairs to tell Marbois that
“Congress have heard with extreme regret that an insult has
been offered to one of the servants of his most Christian
Majesty” and to explain how the federal character of the union
impeded any direct punitive action. Kenneth C. Randall,
Federal Jurisdiction over International Law Claims: Inquiries
into the Alien Tort Statute, 18 N.Y.U. J. INT’L L. & POL. 1, 25
(1985). Sosa in effect reads the adoption of the ATS (with
other provisions) as the framers’ response to these
international hazards. 542 U.S. at 715-20.
For cases against American citizens violating the law of
nations, there would likely be jurisdiction over violations of
norms where the offense (especially if unpunished) would
expose the United States to the risk of war, and perhaps to
other comparable risks. That principle obviously would
encompass an American’s assault on a foreigner present in the
U.S. under a safe conduct (or anywhere in the world under a
U.S.-issued safe conduct). Other international law violations
by Americans meeting the definiteness test and risking
America’s exposure to foreign conflict might also fit.
4
As to cases against foreigners, violations of the law of
nations would be actionable under the ATS if they matched
piracy as an affront to Westphalian sovereignty itself, or if the
foreign perpetrator were linked to the United States by
residence or by some other feature such that American
disregard of the offense might cause serious blame to fall on
the United States. Thus Blackstone, speaking of safe conduct
violations, points to “the interest as well as duty of the
government, under which [violators] live, to animadvert upon
them with a becoming severity, that the peace of the world
may be maintained.” 4 WILLIAM BLACKSTONE,
COMMENTARIES *68 (emphasis added).
To be sure, given the United States’s current military and
economic position, few states would respond to a Marbois-
like incident by declaring war. But the Westphalian
framework can be adapted—either by expanding the scope of
the hypothetically triggered conflict to include international
incidents more generally, or by inquiring whether the
defendant’s alleged behavior might provoke war if the United
States occupied no more than an average position in global
power rankings.
Of course, Sosa’s insistence on prudential concerns forms
an additional overlay on this conceptual framework, as it
would on any. Even where plaintiffs can demonstrate a
definite norm (and, under this conceptual framework, one that
meets the Westphalian purpose), a court would still have to
consider the practical consequences of recognizing a cause of
action under the ATS.