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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 2, 2004 Decided June 11, 2004
No. 03-7110
THE HERERO PEOPLE’S REPARATIONS CORPORATION, ET AL.,
APPELLANTS
v.
DEUTSCHE BANK, A.G. AND
WOERMANN LINE, D/B/A DEUTSCHE AFRIKA–LINIEN
GMBLT & COMPANY,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(01cv01868)
Philip M. Musolino argued the cause and filed the briefs
for appellants.
Jeffrey Barist argued the cause for appellee Deutsche
Bank, A.G. With him on the brief was Jeffrey L. Nagel.
David S. Cohen entered an appearance.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Alan Kanzer argued the cause for appellee Woermann
Line. With him on the brief was Torsten M. Kracht. Dwight
C. Smith III entered an appearance.
Before: HENDERSON, RANDOLPH, and ROBERTS, Circuit
Judges.
RANDOLPH, Circuit Judge: Those who appeal the dismissal
of their complaint for failure to state a claim ordinarily argue
their claim has merit. In this case, the appellants seek to
convince us their claim had far less merit than the district
court believed; that it was, in fact, so insubstantial that
federal question jurisdiction did not exist. A ruling to this
effect would send the case back to the Superior Court of the
District of Columbia where it began and would, appellants
hope, prevent preclusion of a nearly identical complaint they
filed in the Southern District of New York.
Appellants are the Herero Tribe of Namibia, members of
the Tribe, and an association representing its interests.
Their complaint alleged that in the late 19th and early 20th
centuries Imperial Germany launched a campaign of atroci-
ties against the Herero using torture, slavery, and genocide.
The Herero sought damages from Deutsche Bank and Woer-
mann Line, German companies whom they accused of partici-
pating in the atrocities.
The voluminous complaint, filed in Superior Court, did not
identify the specific law supplying the cause of action. It did
state that ‘‘[w]ell recognized principles of District of Columbia
law, United States law, and international law provide this
court with jurisdictionTTTT’’ Later references to law men-
tioned the defendants’ violations of ‘‘international law’’ and
commission of ‘‘crimes against humanity.’’
Defendants removed the complaint to federal district court.
The Herero moved to remand. They did not contest the
existence of federal jurisdiction but merely questioned the
formal adequacy of the removal petition. The district court
denied the motion, ruling that the removal petition was
adequate, and that the complaint’s international law claims
presented a federal question. The defendants then moved to
3
dismiss. The district court granted Woermann Line’s motion
to dismiss for lack of personal jurisdiction, FED. R. CIV. P.
12(b)(2), ruling that the company did not have sufficient
contacts with the District of Columbia to satisfy the District’s
long-arm statute, D.C. CODE § 13–423. The following day,
the court granted Deutsche Bank’s motion to dismiss for
failure to state a claim, FED. R. CIV. P. 12(b)(6), ruling that
federal common law provides no private cause of action for
violations of customary international law.1
The Herero argue that the absence of a cause of action
deprived the district court of subject matter jurisdiction.
They say that once the district court concluded no cause of
action existed, it should have remanded the case to the
Superior Court pursuant to 28 U.S.C. § 1447. Generally, the
question whether a cause of action exists calls for a judgment
on the merits, not jurisdiction. Bell v. Hood, 327 U.S. 678
(1946); Silverman v. Barry, 727 F.2d 1121, 1124–25 (D.C. Cir.
1984). If a plaintiff purports to assert a federal claim, the
district court has federal question jurisdiction unless the
claim is ‘‘immaterial and made solely for the purpose of
obtaining jurisdiction or TTT wholly insubstantial and frivo-
lous.’’ Bell v. Hood, 327 U.S. at 682–83. See generally 13B
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRAC-
TICE AND PROCEDURE § 3564 (2d ed. 1984). Since the Herero
did not want to be in federal court, we can be confident that
they did not assert an immaterial federal claim for the
purpose of obtaining federal jurisdiction. The question there-
fore is whether their claim was ‘‘wholly insubstantial and
frivolous.’’
Before we decide that question, we must determine wheth-
er the Herero actually raised any federal claims, substantial
or otherwise. Unlike Bell v. Hood, the complaint in this case
did not explicitly assert that the claims were grounded in
federal law. But that cannot be dispositive. State law, like
1 Some courts have held that the Alien Tort Act, 28 U.S.C.
§ 1350, provides such a cause of action. See Al Odah v. United
States, 321 F.3d 1134, 1145–46 (D.C. Cir. 2003) (Randolph, J.,
concurring) (collecting cases). But the Herero explicitly disclaimed
reliance on that statute.
4
the federal rules, may not require plaintiffs to identify the
legal basis for their cause of action, so complaints arising
under the laws of the United States, and thus removable
under § 1441, will not necessarily mention federal law. See
Metro. Life Ins. Co. v. Taylor, 481 U.S. 58 (1987); Avco Corp.
v. Machinists, 390 U.S. 557 (1968); Sylgab Steel & Wire
Corp. v. Strickland Transp. Co., 270 F. Supp. 264 (E.D.N.Y.
1967) (Weinstein, J.). Several factors indicate that the Here-
ro were asserting federal claims. First, international law was
the only law the complaint accused the defendants of violat-
ing. Such claims would only be cognizable under federal law.
See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425–
27 (1964). Second, in their motion to remand, the Herero did
not deny they were asserting federal claims, and they did not
suggest any non-federal claims they might otherwise be as-
serting. Third, in their oppositions to the motions to dismiss,
the Herero explicitly asserted that their claims were founded
on federal common law or international law. They presented
no non-federal theories.
A claim is too ‘‘insubstantial and frivolous’’ to support
federal question jurisdiction when it is ‘‘obviously without
merit’’ or when ‘‘its unsoundness so clearly results from the
previous decisions of [the Supreme Court] as to foreclose the
subject and leave no room for the inference that the questions
sought to be raised can be the subject of controversy.’’
Hagans v. Lavine, 415 U.S. 528, 538 (1974) (citations omit-
ted); Silverman, 727 F.2d at 1124. It is not ‘‘insubstantial
and frivolous’’ to assert that federal common law should
provide a private cause of action for violations of customary
international law. True, this circuit has not embraced the
idea. See Tel–Oren v. Libyan Arab Republic, 726 F.2d 774,
779 n.4 (D.C. Cir. 1984) (Edwards, J.); id. at 799 (Bork, J.);
id. at 823–27 (Robb, J.); Al Odah v. United States, 321 F.3d
1134, 1147–49 (D.C. Cir. 2003) (Randolph, J., concurring).
But the Supreme Court has yet to rule on the subject, and
the theory has received support in court decisions and law
review articles. See, e.g., Filartiga v. Pena–Irala, 630 F.2d
876, 886–87 (2d Cir. 1980); Hawkins v. Comparet–Cassani, 33
F. Supp. 2d 1244, 1255 (C.D. Cal. 1999) (citing Bivens v. Six
5
Unknown Named Agents of the Fed. Bureau of Narcotics,
403 U.S. 388 (1971)), rev’d in part on other grounds, 251 F.3d
1230 (9th Cir. 2001); White v. Paulsen, 997 F. Supp. 1380,
1383–84 (E.D. Wash 1998) (same); Harold Hongju Koh,
Transnational Public Law Litigation, 100 YALE L.J. 2347,
2385–86 (1991); Kenneth C. Randall, Federal Questions and
the Human Rights Paradigm, 73 MINN. L. REV. 349 (1988).
That makes this case indistinguishable from Bell v. Hood. In
both cases, the complaints alleged clear violations of law –
there the Fourth Amendment, here customary international
law – presenting only the previously unresolved question
whether federal common law provided a remedy.
The Herero rely on the fact that, in Tel-Oren, Judges
Edwards and Bork characterized their rejection of the federal
common law theory as jurisdictional. Id. at 779 n.4 (Ed-
wards, J.); id. at 799 (Bork, J.). However, the merits-
jurisdiction distinction did not arise in that case, and neither
judge sought to distinguish Bell or to apply its ‘‘insubstantial
and frivolous’’ exception. ‘‘[I]t is impossible to believe that
the Court intended by mere stroke of the pen to obliterate a
distinction [between jurisdiction and merits] that it had con-
sistently drawn for many decades.’’ Fogel v. Chestnutt, 668
F.2d 100, 107 (2d Cir. 1981) (Friendly, J.) (referring to
Kissinger v. Reporters Comm. for Freedom of the Press, 445
U.S. 136 (1980)). Instead, it appears the Tel-Oren opinions
were written as if the line between jurisdiction and merits
was unimportant to the outcome. See id. at 105–07.
The complaint in this case also stated an arguable claim
under the Alien Tort Act, 28 U.S.C. § 1350. While this court
has not decided exactly what the Alien Tort Act means, see Al
Odah v. United States, 321 F.3d 1134, 1145–50 (D.C. Cir.
2003) (Randolph, J., concurring), it is not frivolous to assert
that it creates a cause of action. Several other circuits have
ruled that it does. See id. at 1145–46 (collecting cases).
After removal, the Herero sought to disclaim reliance on the
Alien Tort Act. But a plaintiff’s change in legal theory
cannot defeat jurisdiction if a federal question appeared on
the face of the complaint. See Felice v. Sever, 985 F.2d 1221
(3d Cir. 1993). The complaint here stated a nonfrivolous
6
federal claim under one theory or another, and the district
court therefore did not err in ruling on the merits.2
The Herero also appeal the dismissal of Woermann Line
for lack of personal jurisdiction.3 They argue the district
court could have exercised its ‘‘universal jurisdiction’’ over the
company. Universal jurisdiction is a doctrine of international
law allowing states to define and punish certain crimes con-
sidered to be of ‘‘universal concern.’’ See United States v.
Rezaq, 134 F.3d 1121, 1133 (D.C. Cir. 1998); RESTATEMENT
(THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 404
(1987). Even if the concept applied in a civil case without any
authorizing statute, under our system a federal court general-
ly cannot exercise personal jurisdiction over a defendant
unless FED. R. CIV. P. 4 authorizes service of process. Omni
Capital Int’l v. Rudolph Wolff & Co., 484 U.S. 97, 104 (1987).
The Herero no longer allege that jurisdiction is appropriate
under the District of Columbia long-arm statute, see FED. R.
CIV. P. 4(k)(1)(A), nor do they allege that service is ‘‘author-
ized by a statute of the United States,’’ see FED. R. CIV. P.
4(k)(1)(D). While they do argue that jurisdiction exists under
FED. R. CIV. P. 4(k)(2), they did not raise that point below.
2 The Herero argue that, even so, the district court abused its
discretion by denying them leave to amend the complaint to meet
the defendants’ objections. But the Herero never properly moved
to amend, either before or after the district court’s decision. See
Gov’t of Guam v. Am. President Lines, 28 F.3d 142, 149–51 (D.C.
Cir. 1994); Confederate Mem’l Ass’n v. Hines, 995 F.2d 295, 299–
300 (D.C. Cir. 1993).
3 Woermann Line suggests that, if we affirm the district court’s
Rule 12(b)(6) dismissal, we need not reach the personal jurisdiction
issue. However, Woermann Line’s dismissal for lack of personal
jurisdiction came before the district court’s ruling on the merits.
Since Woermann Line was not a party when the district court
dismissed the complaint, the second ruling has no effect on its
dispute with the Herero. If Woermann Line wanted to enjoy the
possible preclusive effects of the 12(b)(6) dismissal, it should have
waived lack of personal jurisdiction.
7
This leaves the Herero without a statutory basis for asserting
jurisdiction over Woermann Line.
Affirmed.