Farhan Warfaa v. Yusuf Ali

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1810

FARHAN MOHAMOUD TANI WARFAA,

Plaintiff - Appellee,

v.

YUSUF ABDI ALI,

Defendant - Appellant.

No. 14-1934

FARHAN MOHAMOUD TANI WARFAA,

Plaintiff - Appellant,

v.

YUSUF ABDI ALI,

Defendant - Appellee.

Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:05-cv-00701-LMB-JFA)

Argued: September 16, 2015 Decided: February 1, 2016

Before GREGORY, AGEE, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the majority
opinion, in which Judge Diaz joined. Judge Gregory wrote a
separate opinion dissenting in part.

ARGUED: Joseph Peter Drennan, Alexandria, Virginia, for
Appellant/Cross-Appellee. Tara Melissa Lee, DLA PIPER LLP (US),
Reston, Virginia, for Appellee/Cross-Appellant. ON BRIEF:
Joseph C. Davis, Reston, Virginia, Paul D. Schmitt, Mason
Hubbard, DLA PIPER LLP (US), Washington, D.C.; Laura Kathleen
Roberts, Nushin Sarkarati, Scott A. Gilmore, CENTER FOR JUSTICE
& ACCOUNTABILITY, San Francisco, California, for Appellee/Cross-
Appellant.

2
AGEE, Circuit Judge:

Farhan Warfaa alleges that in 1987, a group of soldiers

kidnapped him from his home in northern Somalia. Over the next

several months, Warfaa claims he was beaten, tortured, shot, and

ultimately left for dead at the direction of Yusuf Ali, a

colonel in the Somali National Army at the time. Warfaa later

sued Ali under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350,

and the Torture Victim Protection Act of 1991 (“TVPA”), Pub. L.

No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350

note), alleging several violations of international law.

After lifting a multi-year stay, the district court

dismissed Warfaa’s ATS claims, finding they did not sufficiently

“touch and concern” the United States so as to establish

jurisdiction in United States courts under Kiobel v. Royal Dutch

Petroleum Co., 133 S. Ct. 1659, 1669 (2013). The district court

allowed Warfaa’s TVPA claims to proceed after holding that Ali

was not entitled to immunity as a foreign official. Both Warfaa

and Ali appeal. For the reasons set forth below, we affirm the

judgment of the district court.

3
 I.

Throughout the 1980s, Somalia experienced a period of

political upheaval. 1 A military dictatorship led by Siad Barre

controlled the country’s government, and Barre’s dictatorship

employed violence and intimidation to maintain control and stay

in power. Among other things, the Somali government targeted

members of certain opposition “clans” through killings, torture,

and property destruction. Warfaa’s clan, the Isaaq, was

targeted.

Ali supported the Barre regime and commanded the Fifth

Battalion of the Somali National Army stationed in Gebiley, the

area where Warfaa lived. Early one morning in December 1987,

two armed soldiers from the Fifth Battalion appeared at Warfaa’s

hut, rousted him from his sleep, and forced him to a nearby

collection point. There, Warfaa and several other local farmers

learned that they were accused of supporting an opposition

organization, the Somali National Movement (“SNM”). Soldiers

then forced the men to march to another village where an army

truck drove them to Fifth Battalion headquarters. Some of the

other farmers were freed, but Warfaa, as a member of the Isaaq

1Because this appeal stems from the grant of a motion to
dismiss, we accept as true all well-pled facts in Warfaa’s
complaint and construe them in the light most favorable to him.
United States v. Triple Canopy, 775 F.3d 628, 632 n.1 (4th Cir.
2015).

4
clan, was detained and placed in a small, windowless cell with

ten other prisoners.

Warfaa alleges he was subjected to many acts of violence

during his detention at the direction of Ali. For instance,

Warfaa claims that soldiers hit him with the butt of a gun, tied

him in a painful position, kicked him, and stripped him naked.

He was taken to Ali’s office, where Ali personally questioned

him about his supposed support of SNM and his rumored

involvement in the theft of a water truck. Later, soldiers

again stripped Warfaa naked, beat him to unconsciousness, woke

him with cold water, and then beat him again. Once more, Ali

interrogated Warfaa after this torture, this time with Warfaa’s

hands and feet chained. During the early months of 1988, Ali

and his soldiers committed similar acts of torture against

Warfaa at least nine times.

In March 1988, SNM fighters attacked Fifth Battalion

headquarters while Ali was interrogating Warfaa. After ordering

his soldiers to defend the base, Ali shot Warfaa in the wrist

and leg, causing him to fall unconscious. Ali thought he had

killed Warfaa and ordered his guards to bury the body. When

Warfaa regained consciousness, however, he convinced the guards

to accept a bribe, and they released him. Warfaa still resides

in Somalia today.

5
 The Barre regime collapsed in 1991, but Ali had departed

the country in advance of the fall and immigrated to Canada in

December 1990. Canada deported Ali two years later for serious

human rights abuses, and he then came to the United States. The

United States began deportation proceedings soon thereafter, but

Ali voluntarily left the country in 1994. For reasons not

explained in the record, Ali returned to the United States in

December 1996 and now resides in Alexandria, Virginia. 2

Warfaa, identified only as a John Doe, and a Jane Doe

originally filed suit against Ali in the United States District

Court for the Eastern District of Virginia in 2004. Plaintiffs

voluntarily dismissed the complaint and refiled it in June 2005.

For most of its duration, this case has been stayed. In

August 2005, the district court stayed the case until a party

could provide a declaration from the United States Department of

State indicating that the action would not interfere with U.S.

foreign policy. In April 2012, after the case briefly resumed,

the district court granted a consent motion to further stay the

2It is unclear from the record why Ali came to the United
States after deportation by Canada and why he remains in the
United States. Ali was arrested in 1998 by agents of the
Immigration and Naturalization Service, who indicated he was
responsible for “genocidal acts” that “led to the deaths of
thousands of people.” See David Stout, Ex-Somali Army Officer
Arrested in Virginia, N.Y. Times, Feb. 28, 1998, at A4. The
record contains no evidence explaining the disposition of these
claims.

6
case pending the Supreme Court’s decision in Kiobel. After the

Supreme Court issued its Kiobel decision in April 2013, the

district court again extended the stay and invited the State

Department to express its view as to whether the issues before

the court would affect United States foreign policy. The State

Department “decline[d] to express views on the subject” and,

upon further request, explained that it was “not in a position

to present views to the Court concerning this matter at this

time.” 3 J.A. 17, 22.

On April 25, 2014, the district court lifted the stay and

ordered Warfaa to file an amended complaint. Warfaa’s amended

complaint contains six counts: (1) attempted extrajudicial

killing; (2) torture; (3) cruel, inhuman, or degrading treatment

or punishment; (4) arbitrary detention; (5) crimes against

humanity; and (6) war crimes. All six counts allege torts

purportedly committed in violation of international law, with

jurisdiction arising under the ATS. In addition, the first two

counts -- attempted extrajudicial killing and torture -- are

alleged to violate the TVPA, which provides a jurisdictional

3 Requesting the State Department’s view is common in cases
that implicate foreign policy. The Court “give[s] absolute
deference to the State Department’s position on status-based
immunity doctrines such as head-of-state immunity. The State
Department’s determination regarding conduct-based immunity, by
contrast, is not controlling, but it carries substantial weight
in [the Court’s] analysis of the issue.” Yousuf v. Samantar,
699 F.3d 763, 773 (4th Cir. 2012).

7
basis separate from the ATS. See 28 U.S.C. § 1350 note; Kiobel,

133 S. Ct. at 1669 (Kennedy, J., concurring) (noting the TVPA

addresses “human rights abuses committed abroad”).

Ali filed a motion to dismiss the amended complaint

pursuant to Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). Although the motion did not address Kiobel, the

district court subsequently ordered Warfaa to explain “at [a]

scheduled hearing” why his ATS claims were not barred by the

Supreme Court’s ruling. See J.A. 56-57. At the hearing on the

motion to dismiss, the district court stated that it was “going

to dismiss the ATS claims from this case” “on the basis of

Kiobel” because “[t]here is absolutely no connection between the

United States and [Ali]’s conduct in Somalia.” J.A. 66. It

further indicated that it was not inclined to dismiss the TVPA

claims.

In a subsequent written opinion, the district court granted

Ali’s motion to dismiss as to the ATS claims, but denied the

motion as to the TVPA claims. The district court dismissed the

ATS claims because “such claims, generally speaking, must be

based on violations occurring on American soil.” J.A. 78. In

this case, however, “all the relevant conduct . . . occurred in

Somalia, carried out by a defendant who at the time was not a

8
citizen or resident of the United States.” Id. 4 The district

court rejected Ali’s motion to dismiss the TVPA counts,

concluding that Ali could not claim “official acts” immunity

because his alleged acts violated jus cogens norms. 5

Both parties timely appealed. Ali appeals the district

court’s decision to “reject the Defendant’s plea of common law

immunity from suit.” J.A. 101; see Yousuf v. Samantar, 699 F.3d

763, 768 n.1 (4th Cir. 2012) (explaining that a foreign official

is entitled to lodge an immediate appeal from a pretrial order

denying him “common law” immunity). Warfaa appeals from the

final judgment on the ATS claims. This Court has jurisdiction

under 28 U.S.C. § 1291.

4 We have omitted internal quotation marks, alterations, and
citations here and throughout this opinion, unless otherwise
noted.
5 The district court also concluded that (1) the complaint

alleged sufficient facts under Federal Rule of Civil Procedure
12(b)(6), (2) the TVPA’s statute of limitations did not justify
dismissal, (3) the case did not present a non-justiciable
political question and (4) Ali could not seek protection under
the act-of-state doctrine. Ali does not meaningfully challenge
those portions of the district court’s decision. As to those
issues, his only argument consists of one sentence: “Perforce,
Ali further urges that the fact that the subject matter of the
instant litigation also presents a non-justiciable political
question and an act of state confer further reasons for reversal
of the subject Order appealed from.” Ali’s Opening Br. 10.
Because Ali “does not develop the[se] argument[s] or offer any
explanation for or analysis of his position in his initial
brief,” the Court need not consider them, and we do not. United
States ex rel. Ubl v. IIF Data Solutions, 650 F.3d 445, 457 (4th
Cir. 2011) (finding that a single sentence raising an argument
did not preserve it).

9
 II.

Whether the ATS bars claims related to extraterritorial

conduct presents an issue of subject matter jurisdiction, Al

Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 520 (4th Cir.

2014), which the Court considers de novo. Johnson v. Am.

Towers, LLC, 781 F.3d 693, 701 (4th Cir. 2015). Likewise, the

district court’s denial of foreign official immunity presents a

question of law that the Court must decide de novo. See Smith

v. Ray, 781 F.3d 95, 100 (4th Cir. 2015) (reviewing a district

court’s decision to deny qualified immunity de novo); Wye Oak

Tech., Inc. v. Repub. of Iraq, 666 F.3d 205, 212 (4th Cir. 2011)

(considering a question of immunity under the Foreign Sovereign

Immunities Act de novo).

III.

The ATS “does not expressly provide any causes of action.”

Kiobel, 133 S. Ct. at 1663. Rather, it grants district courts

“original jurisdiction” over “any civil action by an alien for a

tort . . . committed in violation of the law of nations or a

treaty of the United States.” 28 U.S.C. § 1350.

“Passed as part of the Judiciary Act of 1789, the ATS was

invoked twice in the late 18th century, but then only once more

10
over the next 167 years.” Kiobel, 133 S. Ct. at 1663. After

1980, ATS claims became more common, often relying on the Second

Circuit’s decision in Filártiga v. Peña-Irala, 630 F.2d 876 (2d

Cir. 1980). In that case, the Second Circuit applied the ATS to

a claim of torture committed abroad, with all of the acts

involving foreign nationals. Id. at 878, 889. Filártiga opened

the door to more ATS claims and “launched modern ATS

litigation,” Perry S. Bechky, Homage to Filártiga, 33 Rev.

Litig. 333, 336 (2014), but recent Supreme Court decisions have

significantly limited, if not rejected, the applicability of the

Filártiga rationale. See Kiobel, 133 S. Ct. at 1664 (holding

that ATS includes implicit geographic limits); Sosa v. Alvarez-

Machain, 542 U.S. 692, 732 (2004) (holding federal courts cannot

recognize claims brought via the ATS unless plaintiffs premise

those claims on “specific, universal, and obligatory”

international norms). 6

6Warfaa’s citation to Filártiga as contrary authority is
without merit after the Supreme Court’s decision in Kiobel. As
commentators have noted, “[t]he Kiobel Court all but annulled
the subject-matter jurisdiction granted by the Alien Tort
Statute for the very cases for which Filártiga had made it
matter, cases in which the alleged tort occurs within the
territorial borders or waters of a foreign sovereign.” Louise
Weinberg, What We Don’t Talk About When We Talk About
Extraterritoriality: Kiobel and the Conflict of Laws, 99 Cornell
L. Rev. 1471, 1496 (2014). This Court has cited Filártiga once,
in Al Shimari, and we did so only as a passing reference without
any discussion of the Second Circuit’s analysis in the context
of Kiobel. Whatever lingering value in a particular
(Continued)
11
 Alien plaintiffs, like Warfaa, have sought to invoke the

ATS as a means to seek relief for alleged international human-

rights violations. The Supreme Court has explained, however,

the reach of the ATS is narrow and strictly circumscribed.

Kiobel, 133 S. Ct. at 1664.

In Kiobel, the Supreme Court considered whether an ATS

claim “may reach conduct occurring in the territory of a foreign

sovereign.” Id. The answer, for the most part, is “no,” as the

Supreme Court has applied a “presumption against

extraterritorial application.” Id. The presumption “provides

that when a statute gives no clear indication of an

extraterritorial application, it has none, and reflects the

presumption that United States law governs domestically but does

not rule the world.” Id. A court that applies the ATS

extraterritorially risks interference in United States foreign

policy. Id. at 1664-65 (“[T]he principles underlying the

[presumption] similarly constrain courts considering causes of

action that may be brought under the ATS.”). Accordingly, in

Kiobel, the “petitioners’ case seeking relief for violations of

the law of nations occurring outside the United States [wa]s

circumstance Filártiga may have, if any, would not apply in a
case like Warfaa’s, where the only pled event to “touch and
concern” the United States is the defendant’s post-conduct
residency in the United States.

12
barred.” Id. at 1669. The Supreme Court emphasized that the

ATS can create jurisdiction for such claims only where they

“touch and concern” United States territory “with sufficient

force to displace the presumption against extraterritorial

application.” Id.

This Court has applied Kiobel only once, in Al Shimari v.

CACI Premier Tech., Inc., 758 F.3d 516, 529 (4th Cir. 2014). In

that case, four plaintiffs sued an American military contractor

and several of its employees who were alleged to be American

citizens directly responsible for abusive mistreatment and

torture at the Abu Ghraib prison in Iraq. Id. at 520-21. We

recognized that “the clear implication of the [Supreme] Court’s

‘touch and concern’ language is that courts should not assume

that the presumption categorically bars cases that manifest a

close connection to United States territory.” Id. at 528. To

find that the presumption against extraterritoriality applies,

“it is not sufficient merely to say that . . . the actual

injuries were inflicted abroad.” Id. Instead, courts should

conduct a “fact-based analysis.” Id.

Applying this analytical framework, we found that the Al

Shimari plaintiffs alleged “extensive ‘relevant conduct’ in

United States territory,” which distinguished their case from

Kiobel. Id. Based on that “extensive relevant conduct,” the

plaintiffs’ claims sufficiently “touch[ed] and concern[ed]” the
13
United States to establish jurisdiction under the ATS. 7 Id. at

529.

Al Shimari thus is best read to note that the presumption

against ATS extraterritorial application is not irrefutable. A

plaintiff may rebut the presumption in certain, narrow

circumstances: when extensive United States contacts are present

and the alleged conduct bears such a strong and direct

connection to the United States that it falls within Kiobel’s

limited “touch and concern” language. The usual case will not

present the strong and direct “touches” we recognized in Al

Shimari.

An ATS claim premised on no relevant conduct in the United

States will fit within the heartland of cases to which the

extraterritoriality presumption applies. Doe v. Drummond Co.,

7
In Al Shimari, the Court cited five significant points of
contact with the United States: the defendant-contractor’s
“status as a United States corporation”; the “United States
citizenship of [the contractor]’s employees, upon whose conduct
the ATS claims are based”; the fact that the contractor’s
“contract to perform interrogation services in Iraq was issued
in the United States by the United States Department of the
Interior, and that the contract required [the contractor]’s
employees to obtain security clearances from the United States
Department of Defense”; “allegations that [the contractor]’s
managers in the United States gave tacit approval to the acts of
torture committed by [the contractor]’s employees . . .,
attempted to ‘cover up’ the misconduct, and ‘implicitly, if not
expressly, encouraged’ it”; and congressional intent “to provide
aliens access to United States courts and to hold citizens of
the United States accountable for acts of torture committed
abroad.” Id. at 530-31. There are no such contacts, or
anything close to them, in Warfaa’s case.

14
782 F.3d 576, 592 n.23 (11th Cir. 2015) (“[I]f no relevant

aspects of an ATS claim occur within the United States, the

presumption against extraterritoriality prevents

jurisdiction[.]”); Mujica v. AirScan Inc., 771 F.3d 580, 592

(9th Cir. 2014) (“The allegations that form the basis of

Plaintiffs’ claims exclusively concern conduct that occurred in

Colombia.”); Chowdhury v. Worldtel Bangl. Holding, Ltd., 746

F.3d 42, 49 (2d Cir. 2014) (“[A]ll the relevant conduct set

forth in plaintiff’s complaint occurred in Bangladesh, and

therefore plaintiff’s claim brought under the ATS is barred.”);

Cardona v. Chiquita Brands Int’l, Inc., 760 F.3d 1185, 1191

(11th Cir. 2014) (holding that the presumption applied because

the alleged torture “occurred outside the territorial

jurisdiction of the United States”); Balintulo v. Daimler AG,

727 F.3d 174, 189 (2d Cir. 2013) (“Kiobel forecloses the

plaintiffs’ claims because the plaintiffs have failed to allege

that any relevant conduct occurred in the United States.”).

Warfaa’s cross-appeal asks the Court to apply Kiobel and Al

Shimari to permit a claim against a U.S. resident, Ali, arising

out of conduct that occurred solely abroad. We analyze that

claim by beginning with Kiobel’s strong presumption against

extraterritorial application of the ATS, recognizing Al Shimari

is the rare case to rebut the presumption.

15
 Warfaa’s claims fall squarely within the ambit of Kiobel’s

broad presumption against extraterritorial application of the

ATS. 8 As with Kiobel, in this case, “all of the relevant conduct

took place outside the United States,” in Somalia. Kiobel, 133

S. Ct. at 1669. Nothing in this case involved U.S. citizens,

the U.S. government, U.S. entities, or events in the United

States. The alleged campaign of torture and intimidation was

launched, managed and controlled by the Somali army. Ali

inflicted all the injuries against Warfaa in Somalia. Warfaa’s

ultimate escape -- thus ending the violation -- occurred in

Somalia, as well.

The only purported “touch” in this case is the happenstance

of Ali’s after-acquired residence in the United States long

8
The dissent suggests that Kiobel applies only to corporate
defendants, not natural persons like Ali. Nothing in Kiobel
lends support to that argument. Instead, the Supreme Court
painted with broad strokes when discussing the scope and
purposes of the presumption against extraterritorial application
of the ATS, purposes which apply with equal force when it comes
to natural person defendants. Further, the dissent correctly
recognizes that post-Kiobel no Circuit Court has permitted an
ATS claim premised on individual liability to proceed in the
absence of any cognizable “touches” within the United States.
Dissenting Op. 21. Nonetheless, the dissent relies on Sexual
Minorities Uganda v. Lively, 960 F. Supp. 2d 304 (D. Mass.
2013), for the proposition that citizenship status distinguishes
this case from Kiobel. Ali, however, is not a United States
citizen, and the facts alleged in Lively have no correlation to
the allegations pled in this case. For example, in Lively, “the
Amended Complaint allege[d] that the tortious acts committed by
Defendant took place to a substantial degree within the United
States, over many years, with only infrequent actual visits to
Uganda.” Id. at 321.

16
after the alleged events of abuse. 9 Mere happenstance of

residency, lacking any connection to the relevant conduct, is

not a cognizable consideration in the ATS context. See Kiobel,

133 S. Ct. at 1669 (indicating the defendant’s “mere . . .

presence” in the United States does not afford jurisdiction).

“Kiobel’s resort to the presumption against extraterritoriality

extinguishes . . . ATS cases [with foreign parties and conduct],

at least where all of the relevant conduct occurs outside the

United States, even when the perpetrator later moves to the

United States.” Bechky, supra, at 343. 10

In sum, Warfaa has pled no claim which “touches and

concerns” the United States to support ATS jurisdiction. The

district court thus did not err in granting Ali’s motion to

dismiss the ATS counts in the complaint for lack of

jurisdiction. 11

9 The dissent’s representation that Ali has sought “safe
haven” here, Dissenting Op. 21, 28, is the dissent’s
characterization alone, and is not reflected in Warfaa’s
pleadings or the record in this case.
10 The dissent implies some sort of military aid by the

United States to Ali. Dissenting Op. 26-27. Such a claim was
never pled, briefed or argued by Warfaa, and derives only from a
factual reference in Ali’s brief. Ali’s Opening Br. 8. The
record is devoid of any connection between Ali’s alleged conduct
in Somalia and some U.S. Military contact. The dissent’s
comments in this regard are pure speculation.
11 To the extent the district court’s opinion reads Kiobel

as creating a categorical rule barring the ATS’ application to
conduct solely outside the United States, that reading is
overbroad. Al Shimari makes clear that extensive and direct
(Continued)
17
 IV.

The district court allowed Warfaa’s TVPA claims to go

forward, finding Ali lacked foreign official immunity for jus

cogens violations under Yousuf v. Samantar, 699 F.3d 763, 777

(4th Cir. 2012). In Samantar, we held that foreign official

immunity could not be claimed “for jus cogens violations, even

if the acts were performed in the defendant’s official

capacity.” Id. Ali does not contest that the misdeeds alleged

in the complaint violate jus cogens norms; he concedes that they

do. Rather, his challenge is a simple one: Samantar was wrongly

decided, and jus cogens violations deserve immunity.

Ali would have us overrule Samantar entirely, but that

course is not open to us. One panel’s “decision is binding, not

only upon the district court, but also upon another panel of

this court -- unless and until it is reconsidered en banc.” Doe

v. Charleston Area Med. Ctr., Inc., 529 F.2d 638, 642 (4th Cir.

1975); see also, e.g., United States v. Spinks, 770 F.3d 285,

289-90 (4th Cir. 2014). True, the Court has the “statutory and

constitutional power” to reconsider its own decisions. McMellon

v. United States, 387 F.3d 329, 334 (4th Cir. 2004) (en banc).

“touches” involving the United States may rebut the presumption
in some cases. Warfaa simply has none.

18
But we have decided collectively not to exercise that power as a

“matter of prudence” outside the en banc context. Id. The

district court properly concluded Samantar forecloses Ali’s

claim to foreign official immunity.

V.

For the reasons described above, the district court

correctly held that Warfaa’s ATS claims lacked a sufficient

nexus with the United States to establish jurisdiction over

those claims. The district court also correctly rejected Ali’s

claim of foreign official immunity. The district court’s

judgment is therefore

AFFIRMED.

19
GREGORY, Circuit Judge, concurring in part and dissenting in
part:

I write separately to dissent from Part III of the majority

opinion, as I would hold that the Supreme Court’s decision in

Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013),

does not foreclose the possibility of relief under the Alien

Tort Statute (“ATS”) here.

I.

In Kiobel, a group of Nigerian political asylees brought

suit against Royal Dutch Petroleum Company, Shell Transport and

Trading Company, and their joint subsidiary, Shell Petroleum

Development Company of Nigeria, alleging that these companies

aided and abetted the Nigerian government in committing human

rights abuses against them. 133 S. Ct. at 1662-63. The

defendants’ only contacts with the United States were “listings

on the New York Stock Exchange and an affiliation with a public

relations office in New York.” Mujica v. AirScan Inc., 771 F.3d

580, 591 (9th Cir. 2014) (citing Kiobel, 133 S. Ct. at 1662-63;

id. at 1677-78 (Breyer, J., concurring)). The Court explained

that “[c]orporations are often present in many countries, and it

would reach too far to say that mere corporate presence

suffices” to displace the presumption against

extraterritoriality. Kiobel, 133 S. Ct. at 1669. The Court,

20
however, was “careful to leave open a number of significant

questions regarding the reach and interpretation of the Alien

Tort Statute.” Id. (Kennedy, J., concurring).

Following Kiobel, a number of our sister circuits have

considered and rejected ATS claims brought against U.S.

corporations and their corporate officers for aiding and

abetting foreign actors who commit human rights abuses. See

Maj. Op. 14-15 (citing Doe v. Drummond Co., 782 F.3d 576, 601

(11th Cir. 2015); Chowdhury v. Worldtel Bangladesh Holding,

Ltd., 746 F.3d 42, 45 (2d Cir. 2014); Cardona v. Chiquita Brands

Int’l Inc., 760 F.3d 1185, 1188-89 (11th Cir. 2014); Mujica, 771

F.3d at 596; Balintulo v. Daimler AG, 727 F.3d 174, 179 (2d Cir.

2013)). But no circuit court has decided a post-Kiobel ATS case

premised on principal liability brought against an individual

defendant who has sought safe haven in the United States, a key

difference the majority does not address. This is not to

suggest that Kiobel applies only to corporate defendants, see

Maj. Op. 16 n. 8, but that the analysis and relevant

considerations may differ where the defendant is a natural

person.

Several cases brought prior to Kiobel considered situations

involving individual, natural-person defendants—facts more akin

to those presented here. In Filartiga v. Pena-Irala, 630 F.2d

876, 878 (2d Cir. 1980), two Paraguayan citizens brought an

21
action against Pena-Irala (“Pena”), a Paraguayan police officer,

for the torture and death of a relative. Pena had come to the

United States, overstayed his visitor’s visa, and had been

residing in the United States for over nine months when one of

the plaintiffs served him with a summons and civil complaint.

Id. at 878-79. While acknowledging that “the Alien Tort Statute

ha[d] rarely been the basis for jurisdiction during its long

history,” the Second Circuit found “little doubt” that the

action was properly in federal court. Id. at 887. “This is

undeniably an action by an alien, for a tort only, committed in

violation of the law of nations.” Id. Thus, jurisdiction under

the ATS was proper. Id. at 889; see also Kadic v. Karadzic, 70

F.3d 232, 236-37 (2d Cir. 1995) (finding jurisdiction for ATS

claims brought by Croat and Muslim citizens of Bosnia-

Herzegovina against Bosnian-Serb leader for violations of the

law of nations committed during the Bosnian civil war); In re

Estate of Ferdinand E. Marcos Human Rights Litig., 978 F.2d 493,

503 (9th Cir. 1992) (finding jurisdiction for ATS claim brought

by Philippine citizen against former Philippine official for

violations of the law of nations committed abroad).

The majority states that “recent Supreme Court decisions

have significantly limited, if not rejected, the applicability

of the Filartiga rationale.” Maj. Op. 11 (citing Kiobel, 133 S.

Ct. at 1664; Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004)).

22
Nothing in those opinions, however, explicitly overrules

Filartiga or its progeny. In fact, the Supreme Court in Sosa

“referred to [Filartiga and Marcos] with approval, suggesting

that the ATS allowed a claim for relief in such circumstances.”

Kiobel, 133 S. Ct. at 1675 (Breyer, J., concurring) (citing

Sosa, 542 U.S. at 732). Even Congress has recognized that

Filartiga was “met with general approval.” H.R. Rep. No. 102-

367, pt. 1, at 4 (1991); S. Rep. No. 102-249, at 4 (1991).

Therefore, Filartiga is still good law, and its reasoning is

instructive here.

II.

This case involves “allegations of serious violations of

international law” committed by a natural person who has sought

safe haven within our borders and includes claims that are not

covered by the Torture Victim Protection Act nor “the reasoning

and holding” of Kiobel. Id. at 1669 (Kennedy, J., concurring).

Thus, the “proper implementation of the presumption against

extraterritorial application” in this case requires “further

elaboration and explanation.” Id. Blithely relying on the fact

that the human rights abuses occurred abroad ignores the myriad

ways in which this claim touches and concerns the territory of

the United States.

23
 As the majority correctly states, “claims” are cognizable

under the ATS where they “touch and concern the territory of the

United States . . . with sufficient force to displace the

presumption against extraterritorial application.” Maj. Op. 13

(citing Kiobel, 133 S. Ct. at 1669). The Supreme Court’s use of

“claim”—rather than conduct—to describe the circumstances in

which the presumption may be displaced, however, “suggest[s]

that courts must consider all the facts that give rise to ATS

claims, including the parties’ identities and their relationship

to the causes of action.” Al Shimari v. CACI Premier Tech.,

Inc., 758 F.3d 516, 527 (4th Cir. 2014).

If we consider, as we must, a “broader range of facts than

the location where the plaintiff[] actually sustained [his]

injuries,” there are three facts that distinguish this case from

Kiobel. Id. at 529. First, Ali’s status as a lawful permanent

resident alone distinguishes this case from Kiobel, where the

corporate defendant was merely “present.” Kiobel, 133 S. Ct. at

1669. This Court found a defendant’s citizenship status to be a

relevant “touch” in Al Shimari, where we observed that such

“case[s] do[] not present any potential problems associated with

bringing foreign nationals into United States courts to answer

for conduct committed abroad, given that the defendants are

United States citizens.” Al Shimari, 758 F.3d at 530 (citing

Sexual Minorities Uganda v. Lively, 960 F. Supp. 2d 304, 322 (D.

24
Mass. 2013) (holding that Kiobel did not bar ATS claims against

an American citizen, in part because “[t]his is not a case where

a foreign national is being hailed into an unfamiliar court to

defend himself”)). To the extent that we rely on citizenship

status as a factor, we do so in the good company of our dear

colleagues sitting on this very Court. See Maj. Op. 16, n. 8.

As a legal permanent resident, Ali “has a binding tie to the

United States and its court system.” Yousuf v. Samantar, 699

F.3d 763, 778 (4th Cir. 2012); see also id. at 767 (finding

relevant the fact that U.S. residents “who enjoy the protections

of U.S. law ordinarily should be subject to the jurisdiction of

the courts”).

Second, Ali’s “after-acquired residence” in this country is

not mere “happenstance.” Maj. Op. 16. Ali was in the United

States when he “realiz[ed] that the Barre regime was about to

fall.” Decl. of Ali ¶ 15, Br. in Supp. of Def.’s Renewed Mot.

to Dismiss at 1, Warfaa v. Ali, 33 F. Supp. 3d 653 (2014) (No.

1:05-cv-701), ECF No. 91. He initially sought refugee status in

Canada. Id. at ¶ 15. Canada deported Ali back to the United

States for gross human rights abuses committed in Somalia. Id.

at ¶ 18; J.A. 74. When confronted with deportation proceedings

upon entering the United States, he voluntarily departed, only

to return two years later on a spousal visa. Decl. of Ali ¶ 22.

In 1997, Ali was confronted with deportation proceedings yet

25
again but prevailed at trial to have proceedings terminated.

Id. at ¶ 23. The government did not appeal. Id. He has been

living here as a lawful permanent resident, availing himself of

the benefits and privileges of U.S. residency since 1996.

Lastly, when the alleged acts of torture took place, Ali

was serving as a commander in the Somali National Army. In that

same capacity, he received extensive military training, on

numerous occasions, in the United States. The details of these

contacts, which took place prior to and following the alleged

acts, are laid out by Ali himself in a declaration to the

district court. 1 In 1984, Ali received special military training

with the Officers’ Advanced Military Course at Fort Benning,

Georgia. Decl. of Ali ¶ 8, Br. in Supp. of Def.’s Renewed Mot.

to Dismiss at 1, Warfaa v. Ali, 33 F. Supp. 3d 653 (2014) (No.

1:05-cv-701), ECF No. 91. Later that year, he returned to Fort

Benning where he completed six months of intensive military

training. Id. at ¶ 10. In 1985, he was invited by a

representative of the Defense Intelligence Agency to pursue

further military training at Fort Leavenworth, where he spent a

1
Ali’s military training in the United States is a relevant
“touch” and the fact that it was brought to the Court’s
attention solely by Ali himself does not insulate it from our
consideration. Cf. United States v. Wilson, 699 F.3d 789, 793
(4th Cir. 2012) (“[W]hen a requirement goes to subject-matter
jurisdiction, courts are obligated to consider sua sponte issues
that the parties have disclaimed or have not presented.”
(quoting Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012)).

26
year, before returning to Somalia in July of 1986. Id.

Finally, he received training in management studies with the

U.S. Air Force at Keesler Air Force Base a mere two years after

the acts alleged against him in this case. Id. at ¶ 10. This

is not to suggest that the U.S. government condoned or endorsed

defendant’s conduct, but these contacts are clearly relevant to

a test that requires us to consider whether a claim “touch[es]

and concern[s] the territory of the United States.” 2 Kiobel, 133

S. Ct. at 1669. When pressed at oral argument, even counsel for

Ali did not deny that a “prior relationship,” such as the

military training at issue here, would “perhaps” be something to

consider as part of the touch and concern inquiry. Oral

Argument at 34:44.

Whatever the extent of the relationship between Ali and the

U.S. military, it cannot be fairly said that “[t]he only

purported ‘touch’ in this case is the happenstance of Ali’s

after-acquired residence in the United States long after the

alleged events of abuse.” Maj. Op. 16-17.

2
See George James, Somalia’s Overthrown Dictator, Mohammed
Siad Barre, Is Dead, N.Y. Times, Jan. 3, 1995, at C41 (“Somalia
received military and economic aid from the United States for a
promise of American use of the port of Berbera on the Gulf of
Aden. But aid declined drastically as allegations of human
rights abuses rose.”).

27
 III.

The majority today allows a U.S. resident to avoid the

process of civil justice for allegedly “commit[ting] acts abroad

that would clearly be crimes if committed at home.” United

States v. Bollinger, 798 F.3d 201, 219 (4th Cir. 2015)

(upholding the constitutionality of 18 U.S.C. § 2423(c) under

the Foreign Commerce Clause). The precedential effect of this

holding “could undoubtedly have broad ramifications on our

standing in the world, potentially disrupting diplomatic and

even commercial relationships.” Id.

It is not the extraterritorial application of the ATS in

the instant case that “risks interference in United States

foreign policy,” but rather, providing safe haven to an

individual who allegedly committed numerous atrocities abroad.

Maj. Op. 12. This was the case in Filartiga, where, as here,

“[t]he individual torturer was found residing in the United

States.” Suppl. Br. for United States as Amicus Curiae in

Partial Supp. of Affirmance at 4, Kiobel v. Royal Dutch

Petroleum Co., 133 S. Ct. 1659 (2013) (No. 10-1491). These are

“circumstances that could give rise to the prospect that this

country would be perceived as harboring the perpetrator,”

thereby “seriously damag[ing] the credibility of our nation’s

commitment to the protection of human rights.” Id. at 19

(citing Mem. for the United States as Amicus Curiae at 22-23,

28
Filartiga v. Pena-Irala, 630 F.2d 876 (2d. 1979) (No. 79-6090)).

Such concerns are precisely what led the United States, writing

as amicus in Kiobel, to conclude that “allowing suits based on

conduct occurring in a foreign country in the circumstances

presented in Filartiga is consistent with the foreign relations

interests of the United States, including the promotion of

respect for human rights.” Suppl. Br. for the United States in

Partial Supp. of Affirmance at 4-5, Kiobel, 133 S. Ct. 1659

(2013) (No. 10-1491).

The ATS has not been completely abrogated by Kiobel. It is

still a statute, and Congress meant something by it. The fact

that the alleged torts occurred outside our borders cannot be

the end of the story; what we are dealing with, after all, is

the Alien Tort Statute.

Ali is alleged to have committed gross human rights abuses,

for which he was deported from Canada, and is now a lawful

permanent resident. The United States is the sole forum in

which he is amenable to suit. The atrocious nature of these

allegations, the extensive contacts with the United States, and

the context of those contacts renders jurisdiction proper under

the ATS. I would reverse the district court’s summary dismissal

of the ATS claims and find that Warfaa has pleaded sufficient

facts showing that his claim touches and concerns the territory

29
of the United States. I respectfully dissent from the

majority’s holding on this issue.

30