Estate of Arturo Giron Alvarez et al v. The John Hopkins University et al

Filing 204

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 1/3/2019. (heps, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

ESTATE OF ARTURO GIRON ALVAREZ,
THE 773 INDIVIDUALS IDENTIFIED ON
EXHIBIT 1 TO THE COMPLAINT and
UNKNOWN USE PLAINTIFFS,
Plaintiffs,
v.
THE JOHNS HOPKINS UNIVERSITY,
THE JOHNS HOPKINS UNIVERSITY
SCHOOL OF MEDICINE,
THE JOHNS HOPKINS HOSPITAL,
THE JOHNS HOPKINS BLOOMBERG
SCHOOL OF PUBLIC HEALTH,
THE JOHNS HOPKINS HEALTH
SYSTEMS CORPORATION,
THE ROCKEFELLER FOUNDATION and
BRISTOL-MYERS SQUIBB COMPANY,

Civil Action No. TDC-15-0950

Defendants.

MEMORANDUM OPINION
Plaintiffs Estate of Arturo Giron Alvarez and 773 other Guatemalan nationals have filed a
civil action against the Johns Hopkins University and four affiliated entities, the Rockefeller
Foundation, and Bristol-Myers Squibb Company. Plaintiffs allege that Defendants subjected them
or their family members to medical experiments in Guatemala without their knowledge or consent
during the 1940s and 1950s, in violation of the law of nations. Presently pending before the Court
is Defendants' Motion for Judgment on the Pleadings on the grounds that the Alien Tort Statute,
28 U.S.C.

S

1350 (2012), upon which Plaintiffs' claims are based, does not allow for claims against

a corporation. On December 18, 2018, the Court heard oral argument on the Motion. For the
reasons set forth below, Defendants’ Motion will be DENIED.
BACKGROUND
Relevant factual and procedural background is set forth in the Court’s September 7, 2016
Decision re: Second Amended Complaint, Estate of Alvarez v. Johns Hopkins Univ. (“Alvarez I”),
205 F. Supp. 3d 681, 683–85 (D. Md. 2016), and the August 30, 2017 Decision re: Third Amended
Complaint, Estate of Alvarez v. Johns Hopkins Univ. (“Alvarez II”), 275 F. Supp. 3d 670, 677–78
(D. Md. 2017). Additional facts and procedural history specific to this motion are provided here.
Plaintiffs invoke the Court’s jurisdiction under the Alien Tort Statute (“ATS”), 28 U.S.C.
§ 1350, which provides: “The district courts shall have original jurisdiction of any civil action by
an alien for a tort only, committed in violation of the law of nations or a treaty of the United
States.” Id. The seven Defendants are all U.S. corporations. Specifically, as alleged in the Third
Amended Complaint, Defendants the Johns Hopkins University, the Johns Hopkins University
School of Medicine, the Johns Hopkins Hospital, the Johns Hopkins Bloomberg School of Public
Health, and the Johns Hopkins Health System Corporation (collectively “the Johns Hopkins
Defendants”) are corporations formed under the laws of Maryland with their principal places of
business in Maryland, Defendant the Rockefeller Foundation is a corporation formed under the
laws of New York, and Defendant Bristol-Myers Squibb Company is a corporation formed under
the laws of Delaware with its principal place of business in New York.
In previous decisions, the Court (Garbis, J.), in finding jurisdiction over Plaintiffs’ ATS
claims, stated that it “will follow the majority consensus that corporations can be liable under the
ATS.” Alvarez II, 275 F. Supp. 3d at 687 & n.21; Alvarez I, 205 F. Supp. 3d at 694. When granting
in part and denying in part Defendants’ Motion to Dismiss the Third Amended Complaint in

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August 2017, the Court acknowledged that the United States Supreme Court had recently "granted
certiorari to address whether the ATS categorically forecloses corporate liability." Alvarez 11,275
F. Supp. 3d at 687 n.21 (citing Jesner v. Arab Bank, PLC, 137 S. Ct. 1432 (2017».

Since the

parties did not seek entry of a stay, the Court stated that it would re-address the issue of corporate
liability under the ATS after the Supreme Court's decision in Jesner if it proved "necessary."
Alvarez II, 275 F. Supp. 3d at 687 n.21. On April 24, 2018, the Supreme Court issued a decision
in Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018), holding that "foreign corporations may not
be defendants in suits brought under the ATS." Id. at 1407. Defendants then filed their Motion
for Judgment on the Pleadings, which is now ripe for decision.
DISCUSSION
In Count I of the Third Amended Complaint, Plaintiffs assert an ATS claim based on the
allegation that Defendants, all of which are U.S. corporations, conducted medical experiments on
them or their family members without the victims' knowledge or consent, and thus committed
crimes against humanity, in violation of well-established and customary norms of international
law. In their Motion, Defendants seek dismissal of Plaintiffs' ATS claim, the only remaining claim
in the case, on the basis of the Supreme Court's decision in Jesner. Defendants argue that although
the Supreme Court's holding in Jesner explicitly applied to only foreign corporations, its reasoning
also establishes that courts may not permit causes of action under the ATS against domestic
corporations.
I.

Legal Standard
Defendants' Motion for Judgment on the Pleadings is filed under Federal Rule of Civil

Procedure l2( c). "The standard of review for Rule l2( c) motions is the same as that under Rule
12(b)(6)." Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014); see PETA v. USDA,

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861 F.3d 502, 506 (4th Cir. 2017). To defeat a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the complaint must allege enough facts to state a plausible claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible when the facts pleaded allow
"the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Id. Legal conclusions or conclusory statements do not suffice. Id. The Court must examine the
complaint as a whole, consider the factual allegations in the complaint as true, and construe the
factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266,
268 (1994); Lambeth v. Bd. of Comm 'rs of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005).
II.

The Jesner Opinion
The Supreme Court granted certiorari in Jesner to resolve the question whether "the Alien

Tort Statute, 28 U.S.c.

S

1350, categorically forecloses corporate liability."

Pet. for Writ of

Certiorari at i, Jesner, 138 S. Ct. 1386 (No. 16-499),2016 WL 6069100; see Jesner v. Arab Bank,
PLC, 137 S. Ct. 1432 (2017) (granting the petition for a writ of certiorari). Ultimately, the Jesner
Court held "that foreign corporations may not be defendants in suits brought under the ATS."
Jesner, 138 S. Ct. at 1407.
Defendants acknowledge that the holding is limited to foreign corporations but argue that
"nearly all of the reasons offered in support of that holding ...

apply equally to foreign and

domestic corporations" and contend that "it is clear that a majority of the Supreme Court would
not extend ATS liability to U.S. corporations."

Defs.' Mot. 7, ECF No. 174-1. They assert that

the Court chose to limit its holding "[b ]ecause the only defendant in Jesner was Arab Bank, a
Jordanian corporation." Id. at 6.
In Jesner, a majority of the Supreme Court joined only three parts of the principal opinion
authored by Justice Kennedy: Part I, Part II-B-1, and Part II-C. The remaining sections of Justice

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Kennedy's opinion were joined by only a plurality, consisting of Justice Kennedy, Chief Justice
Roberts, and Justice Thomas, and are thus only persuasive authority. See CTS Corp. v. Dynamics
Corp. of Am., 481 U.S. 69, 81 (1987). Justices Thomas, Alito, and Gorsuch each wrote concurring
opinions, and Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, filed a
dissenting opinion.
A.

Majority Opinion

After describing the facts of the case, the majority opinion discussed the procedural history
of Jesner and noted that during the litigation, the question whether corporations could be held
liable under the ATS came before the Court after the United States Court of Appeals for the Second
Circuit held in Kiobel v. Royal Dutch Petroleum Co. ("Kiobel f'), 621 F.3d 111 (2d Cir. 2010),
that corporations could not be defendants in ATS suits, id. at 149. See Jesner, 138 S. Ct. at 1395.
In Kiobel, the Supreme Court affirmed the Second Circuit on extraterritoriality grounds because
in that case "all the relevant conduct took place outside of the United States" and thus left
unresolved the question of corporate liability under the ATS. Kiobel v. Royal Dutch Petrol. Co.
("KiobeIIf'),

569 U.S. 108, 124-25 (2013).

As noted in Jesner, 138 S. Ct. at 1396, after Kiobel I and II, three circuits disagreed with
the Second Circuit and concluded that corporations can be defendants in ATS actions: the United
States Court of Appeals for the Ninth Circuit in Doe I v. Nestle USA, Inc., 766 F.3d 1013, 102122 (9th Cir. 2014); the United States Court of Appeals for the District of Columbia Circuit in Doe
VIII v. Exxon Mobil Corp., 654 F.3d 11,40-55

(D.C. Cir. 2011), vacated on other grounds, 527

F. App'x 7 (D.C. Cir. 2013); and the United States Court of Appeals for the Seventh Circuit in
Flomo v. Firestone Nat. Rubber Co., 643 F.3d 1013, 1021 (7th Cir. 2011). Nevertheless, in Jesner,
the Second Circuit, though acknowledging that Kiobel II "appears to suggest that the ATS allows

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for some degree of corporate liability," followed its own precedent in Kiobel I and dismissed the
corporate liability claims as unavailable pursuant to the ATS. In re Arab Bank, PLC Alien Tort
Statute Litig., 808 F.3d 144, 155, 157-58 (2d Cir. 2015).
Next, the majority recounted the history and purposes of the ATS. In enacting the ATS as
part of the Judiciary Act of 1789, Congress aimed "to avoid foreign entanglements by ensuring the
availability of a federal forum where the failure to provide one might cause another nation to hold
the United States responsible for an injury to a foreign citizen." Jesner, 138 S. Ct. at 1397. Though
the ATS was meant to provide jurisdiction for certain claims "alleging violations of the law of
nations," it is "strictly jurisdictional" and therefore does not create a substantive cause of action
for those violations. Id. (quoting Sosa v. Alvarez-Machain,

542 U.S. 692, 713-14 (2004)). The

Court then acknowledged that under Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), federal courts
may recognize claims premised on violations of the present-day law of nations as federal common
law, but such recognition

"implicates

serious separation-of-powers

concerns" and therefore must be "subject to vigilant doorkeeping."

and foreign-relations

Jesner, 138 S. Ct. at 1398

(citing Sosa, 542 U.S. at 727-28, 732).
The Court recognized that its recent opinions, consistent with Sosa, generally "cast doubt
on the authority of courts to extend or create private causes of action even in the realm of domestic
law," because "the Legislature is in the better position to consider if the public interest would be
served by imposing a new substantive legal liability." Id. at 1402 (quoting Ziglar v. Abbasi, 137
S. Ct. 1843, 1857 (2017)). This doubt extends to "whether the courts should exercise the judicial
authority to mandate a rule that imposes liability upon artificial entities like corporations."
1402-03. The Court noted that the "separation-of-powers

Id. at

concerns that counsel against courts(']

creating private rights of action apply with particular force in the context of the ATS" because

6

"[t]he political branches, not the Judiciary, have the responsibility and institutional capacity to
weigh foreign-policy concerns."

Id. at 1403. The Court, however, stopped short of deciding

whether based on the "foreign-policy

and separation-of-powers

concerns inherent in ATS

litigation ... a proper application of Sosa would preclude courts from ever recognizing any new
causes of action under the ATS." !d. The majority instead concluded only that "absent further
action from Congress it would be inappropriate for courts to extend ATS liability to foreign
corporations."

!d.

In support of this conclusion, the Court emphasized how although the ATS "was intended
to promote harmony in international relations by ensuring foreign plaintiffs a remedy for
international-law violations in circumstances where the absence of such a remedy might provoke
foreign nations to hold the United States accountable," ATS suits against foreign corporations
would instead interfere with foreign relations. See id. at 1406. The Court acknowledged that under
the facts of Jesner, there was a "relatively minor connection between the terrorist attacks at
issue ...

and the alleged conduct in the United States," resulting in "significant diplomatic

tensions" with Jordan, a key American ally in the fight against terrorism and the Islamic State in
Iraq and Syria. Id. The Court further noted that where Arab Bank is a major Jordanian financial
institution, "Jordan considers the instant litigation to be a 'grave affront' to its sovereignty."
at 1406-07.

Id.

Observing that "[t]hese are the very foreign-relations tensions" that the ATS was

supposed to avoid, the Court thus concluded that "foreign corporate defendants create unique
problems" and that "courts are not well suited to make the required policy judgments that are
implicated by corporate liability in cases like this one." Id. at 1407. Accordingly, the Court held
that under Sosa's directive that courts must exercise "judicial caution" to avoid "triggering serious

7

foreign policy consequences," "foreign corporations may not be defendants in suits brought under
the ATS." Id.
B.

Plurality Opinion

The remainder of Justice Kennedy's opinion commanded the support of only Chief Justice
Roberts and Justice Thomas. The plurality characterized Sosa as providing a two-pronged analysis
to determine when courts may find a cause of action under the ATS, consisting of: (1) whether
the alleged conduct violates "a norm that is specific, universal, and obligatory," and (2) "whether
allowing the case to proceed under the ATS is a proper exercise of judicial discretion, or instead
whether caution requires the political branches to grant specific authority before corporate liability
can be imposed."

See id. at 1399 (plurality opinion) (citing Sosa, 542 U.S. at 732-33 & nn.20-

21). The plurality then considered, under this first prong, whether "there is an international-law
norm imposing liability on corporations for acts of their employees that contravene fundamental
human rights." Id. Justice Kennedy noted the "considerable force and weight" of the position
taken in the Second Circuit's majority opinion in Kiobel I that corporate liability is a question of
international law not left to individual nations to decide. Id. at 1400. After surveying the charters
of four international criminal tribunals, including the Charter for the Nuremburg Tribunal, which
did not extend criminal liability to corporations, the plurality cautioned against a "broad holding"
of an international norm of corporate liability.

Id. at 1400-01.

Although Justice Kennedy

expressed skepticism with the plaintiffs' claim that whether corporations may be held liable for
the international crimes oftheir employees is a "question of remedy" not governed by international
law, he stated that "the Court need not resolve the questions whether corporate liability is a
question that is governed by international law, or, if so, whether international law imposes liability
on corporations."

Id. at 1402.

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On behalf of the plurality, Justice Kennedy then considered analogous statutes, particularly
the Torture Victim Protection Act ("TVPA"), Pub. L. No.1 02-256, 106 Stat. 73 (1992) (codified
at 28 U.S.C.

S

1350 note), to assess whether judicial discretion should be exercised to recognize

liability under the ATS for corporations. Jesner, 138 S. Ct. at 1403-04 (plurality opinion); id. at
1403-05.

Where Congress did not extend liability to corporations under the TVPA, Justice

Kennedy concluded that "Congress, not the Judiciary, must decide whether to expand the scope of
liability under the ATS to include foreign corporations."

Id. at 1405.

Other practical

considerations counseling deferral to Congress included ATS plaintiffs' other means of holding
violators of international human rights norms accountable under U.S. law; the risk that other
countries may subject American corporations to liability for their employees' misconduct, which
could discourage American companies from international investment; and the complexity of these
foreign policy decisions. Id. at 1405-06. Since whether to allow such liability requires "delicate
judgments, involving a balance that is the prerogative of the political branches to make, especially
in the field of foreign affairs," Justice Kennedy concluded that "judicial deference requires that
any imposition of corporate liability on foreign corporations for violations of international law
must be determined in the first instance by the political branches of the Government." Id. at 1407.
C.

Concurring and Dissenting Opinions

Three concurring opinions and one dissenting opinion were filed. Justice Thomas joined
in the entirety of Justice Kennedy's opinion and wrote separately to clarify that he agreed with the
opinions of Justices Alito and Gorsuch.

Id. at 1408 (Thomas, J., concurring).

concurred in part and concurred in the judgment.

Justice Alito

After accepting the two-prong analysis of Sosa

as described in the plurality opinion, Justice Alito concluded that under the second prong, federal
courts should not act to create causes of action when doing so would not "materially advance" the

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ATS's original purpose of helping the United States avoid "diplomatic friction." Id. at 1410-11
(Alito, J., concurring).

Noting that ATS suits against foreign corporations "may provoke-and,

indeed, frequently have provoked-the

sort of diplomatic strife inimical to the fundamental

purpose of the ATS," Justice Alito concluded that courts should decline to create a cause of action
against foreign corporate defendants under the A TS so as not to "precipitate exactly the sort of
diplomatic strife that the law was enacted to prevent."

Id. at 1408-10.

Notably, Justice Alito

focused on the potential ATS liability of only foreign corporations and specifically stated that the
Court had "no need to reach the question whether an alien may sue a United States corporation
under the ATS." Id. at 1410 n.*.
Justice Gorsuch concurred in part and concurred in the judgment.

Justice Gorsuch stated

first that he "harbor[ ed] serious doubts" about Sosa's holding that courts in some circumstances
may recognize causes of action in ATS suits based on modem customary international law,
because such decisions should be left to Congress. Id. at 1413 (Gorsuch, 1., concurring).

Justice

Gorsuch also asserted that even exercising the discretion available under Sosa, courts should not
recognize new causes of action under the ATS because the context of any such decision would
likely "involve questions of foreign affairs and national security" that should be left to Congress
and the President. Id. at 1414.
Justice Gorsuch devoted the majority of his opinion to advancing an additional argument
against ATS jurisdiction in Jesner:

that it was "a suit by foreigners against foreigners over the

meaning of international norms." Id. According to Justice Gorsuch, a proper interpretation of the
ATS would likely allow for jurisdiction only when there is a "U.S. defendant." Id. at 1415. After
conducting an analysis of the historical context of the ATS, he concluded that "[t]here are at least

10

serious historical arguments suggesting the ATS was not meant to apply to suits like this one,"
involving foreign defendants, and stated:
It is one thing for courts to assume the task of creating new causes of action to
ensure our citizens abide by the law of nations and avoid reprisals against this
country. It is altogether another thing for courts to punish foreign parties for
conduct that could not be attributed to the United States and thereby risk reprisals
against this country.
Id. at 1418-19. He therefore concluded that "the decision to impose sanctions in disputes between
foreigners over international norms" should be made by the political branches. Id.
Justice Sotomayor dissented, joined by Justices Ginsburg, Breyer, and Kagan.

Justice

Sotomayor disagreed "both with the Court's conclusion and its analytic approach" and would hold
that foreign corporations

may be defendants in ATS claims.

Id. at 1419 (Sotomayor,

J.,

dissenting). Noting that Justice Kennedy's opinion "assumes without deciding" that the question
of foreign corporate liability under the ATS depends on the first prong of the Sosa analysis, Justice
Sotomayor asserted that this approach "fundamentally misconceives how international law works
and so misapplies the first step of Sosa."

Id.

In her view, Sosa's first prong applies to the

"substantive prohibitions" and obligations on conduct imposed by international law, not the rules
for enforcing violations of those substantive norms, because international law allows individual
nations to decide how to enforce and remedy substantive violations through various means,
including corporate liability.

See id. at 1420. Since international law furnishes no reason to

distinguish between corporate and natural defendants, Justice Sotomayor examined domestic law
and determined that the "text, history, and purpose of the ATS plainly support the conclusion that
corporations may be held liable."

Id. at 1425-26.

Under the second prong of Sosa, Justice

Sotomayor reasoned that there are not "foreign-policy tensions inherent in suing a corporation
generally" that categorically preclude corporate liability in ATS suits and that corporate liability

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under the ATS "may well be necessary to avoid the international tension" the ATS was designed
to prevent. Id. at 1429-30, 1435. She therefore concluded that foreign corporate liability should
be available under the ATS. Id. at 1436.
III.

Domestic Corporate Liability
The Court does not agree with Defendants that the reasoning of Jesner mandates that there

can be no domestic corporate liability under the ATS or effectively overrules the decisions of the
circuit courts holding that U.S. corporations may be held liable under the ATS.

The Jesner

majority recognized that under Sosa, federal courts may recognize claims based on present-day
law of nations, but they must exercise caution in doing so. See id. at 1398, 1402-03 (majority
opinion).

The majority specified that such caution should extend to when courts exercise

discretion by imposing liability on corporations.

See id. at 1402-03.

Furthermore, the majority

articulated doubts whether courts can establish new rights and causes of action under the ATS,
including a rule such as corporate liability, given the foreign-policy and separation-of-powers
concerns. See id. at 1403, 1406-07.
However, the majority expressly did not conclude that there is no ATS liability for all
corporations without further action by Congress. See id. at 1402 (plurality opinion); see also id.
at 1410 n. * (Alito, J., concurring).
corporations.

The Court limited its holding to the liability of foreign

Id. at 1407 (majority opinion).

To the extent that the majority referenced

Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001), which held that corporate
defendants may not be liable in an action under Bivens v. Six Unknown Federal Narcotics Agents,
403 U.S. 388 (1971), it did so only to illustrate the "general reluctance" of courts to extend liability
to corporate defendants without congressional action.

Jesner, 138 S. Ct. at 1402 (majority

opinion). However, the majority did not preclude the possibility that the ATS and case law could

12

provide a basis for an exception to these "general principles" in the case of domestic corporation,
rather than in the "context" ofthe foreign corporations at issue in Jesner. See id. at 1403. Indeed,
the analogy to Bivens actions is imperfect, because Bivens actions have no statutory basis, while
ATS claims are grounded in the statute, which was "enacted on the understanding that the common
law would provide a cause of action" for certain international law violations.

Sosa, 542 U.S. at

724; Doe VIII, 654 F.3d at 55.
The view that ATS liability likely cannot be extended to domestic corporations without an
amendment of the statute was thus advanced by only three Justices, and even then, that plurality
did not reach a definitive conclusion on this issue. See Jesner, 138 S. Ct. at 1400-02 (plurality
opinion). Significantly, the concurring opinions also fail to reach the conclusion that ATS liability
may not extend to domestic corporations.

Justice Alito's opinion expressly focused on foreign

corporations only and emphasized the foreign-policy concerns associated with such suits. E.g., id.
at 1410 (Alito, J., concurring) ("ATS suits against foreign corporations may provoke-and,
frequently have provoked-exactly

indeed,

the sort of diplomatic strife inimical to the fundamental

purpose of the ATS."). While Justice Gorsuch articulated general concerns about having courts
recognize causes of action without congressional action, especially in a context fraught with
foreign policy consequences, he did not address domestic corporate liability. See id. at 1413-14
(Gorsuch, J., concurring). Rather, his opinion honed in on the separate issue presented by Jesner
of ATS suits "by foreigners against a foreigner over the meaning of international norms." See id.
at 1414. After concluding based on the text, original history, and early interpretations of the ATS
and the requirements of Article III of the Constitution that "an American defendant was needed
for an ATS suit to proceed," id. at 1415, Justice Gorsuch drew a clear distinction between the
establishment by a court of a cause of action against U.S. citizens, which could include U.S.

13

corporations, and the establishment of a cause of action against foreign defendants.

Id. at 1419.

Particularly when Justices Alito and Gorsuch centered so much of their opinions on the foreign
policy problems with suits against foreign corporations, it is not clear how they would resolve an
ATS case involving a domestic corporation as a defendant.
Although Defendants note that Justices Alito and Gorsuch expressed reservations about the
viability of the Sosa two-step framework, where both Justices accepted it for the purposes of
deciding the case, id. at 1409 (Alito, J, concurring); id. at 1413 (Gorsuch, J., concurring), it would
be inadvisable to try to divine their intent in a future case involving domestic corporations.

The

bottom line is that Justices Alito and Gorsuch could have signed on to the plurality opinion that
arguably would preclude corporate liability under the ATS for both foreign and domestic
corporations, but they chose not to do so. That conspicuous decision not to adopt the reasoning of
the plurality prevents a conclusion that domestic corporate liability in an ATS case has effectively
been deemed unavailable.
To the extent that Jesner provides guidance on how to assess whether ATS liability is
available against domestic corporations, such guidance does not lead to the conclusion that
domestic corporate liability is categorically foreclosed under the ATS. The Court does not agree
with Defendants' suggestion during oral argument that the introductory statement from the Jesner
majority opinion, "The Court must first ask whether the law of nations imposes liability on
corporations for human-rights violations committed by its employees," id. at 1394 (majority
opinion), necessarily requires that the Court first conclude that corporate liability in general is an
international norm "that is specific, universal, and obligatory" under the first prong of Sosa in
order to allow ATS claims against U.S. corporations.

First, the majority does not cite to Sosa in

relation to this point, does not state that general corporate liability must be analyzed under its first

14

prong, and in no way addresses whether general corporate liability is an international law norm
under that standard. Rather, only the plurality analyzed whether "under Sosa corporate liability is
a question of international law" and even then expressly stated that "the Court need not resolve the
questions whether corporate liability is a question that is governed by international law, or, if so,
whether international law imposes liability on corporations."

id. at 1402 (plurality opinion).

Notably, in their separate concurrences, neither Justice Alito nor Justice Gorsuch addressed Sosa's
first prong or whether general corporate liability is a matter of international law. See id. at 1409
(Alito, J., concurring); id. at 1413-14 (Gorsuch, J., concurring).

Where only three Justices

engaged in any analysis of this question and did not resolve it, this Court will not conclude that
the majority has endorsed the view that general corporate liability must be an international law
norm under Sosa in order for ATS claims to be available against domestic corporations.
The Court also does not agree that the majority's statement that "if there are sound reasons
to think Congress might doubt the efficacy or necessity of a damages remedy, ... courts must
refrain from creating the remedy in order to respect the role of Congress," id. at 1402 (majority
opinion) (alteration in original) (quoting Ziglar, 137 S. Ct. at 1857), establishes a rule that a court
may not establish an ATS cause of action based on a violation of an international law norm unless
the plaintiff has shown "that Congress would undoubtedly want courts to create a private cause of
action."

Defs.' Reply 7-8, ECF No. 177.

First, the majority described this statement as a

"caution," not a rule. Jesner, 138 S. Ct. at 1402. Second, the Court did not directly apply such a
standard to the question in Jesner, whether foreign corporate liability is available under the ATS
absent explicit congressional action. Rather, in ruling that foreign corporate liability is unavailable
under the A TS, the majority more generally emphasized the political branches' "responsibility and

15

institutional capacity to weigh foreign-policy concerns." Id. at 1403. The Court declines to apply
this dictum literally and employ a standard that the Supreme Court itself did not use.
In fact, the analysis common to the opinions of the five justices constituting the majority
focused on the second prong of Sosa and concluded that suits against foreign corporations lead to
diplomatic tensions that are better handled by the political branches. See id. at 1402-03, 1406; id.
at 1402, 1405 (plurality opinion); id. at 1409-11 (Alito, J., concurring); id. at 1413-14 (Gorsuch,
J., concurring).

The majority stressed "the foreign-policy and separation-of-powers

concerns

inherent in ATS litigation" in stating that judicial discretion weighed against allowing ATS claims
against foreign defendants and referred to the "prolonged diplomatic disruptions" that the Jesner
case had prompted. Id. at 1403, 1407 (majority opinion). The plurality highlighted the "delicate
judgments" and balancing Congress must engage in, "especially in the field of foreign affairs,"
when determining whether foreign corporate liability is permissible under the ATS. Id. at 1408
(plurality opinion).

In his opinion, Justice Alito returned to the ATS's original and primary

purpose of "avoiding diplomatic strife."

Id. at 1412 (Alito, J., concurring).

Finally, Justice

Gorsuch focused on the "questions of foreign affairs and national security" and the "practical
consequence

of offending

another nation"

as considerations

counseling

establishment of an ATS cause of action against foreign corporations.

against judicial

Id. at 1414 (Gorsuch, J.

concurring).
Applying such analysis here, to an ATS suit involving domestic corporations, the Court
finds that the need for judicial caution is markedly reduced.

Unlike a suit against a foreign

corporation as in Jesner, which can cause, and has caused in other cases, diplomatic tension or
objections from foreign governments that a suit is an "affront" to their sovereignty, see id. at 140607 (majority opinion), suits against U.S. corporations likely will not generate such complaints.

16

Moreover, allowing domestic corporate liability would further the purposes of the ATS, by
affording a remedy in U.S. courts to foreign nationals for violations ofintemationallaw

by a U.S.

corporation. See id at 1397. Permitting such suits to go forward would thus "promote harmony"
rather than "provoke foreign nations."

Id at 1406. Thus, the analysis in Jesner underlying the

barring of ATS suits against foreign corporations does not lead to the same result for ATS suits
against domestic corporations.
Defendants' analogy to the TVPA, 28 U.S.C.

S 1350 note,

which does not permit claims

against corporate defendants, does not persuade this Court that domestic corporate liability is
precluded by Jesner. The TVPA provides a cause of action for victims of acts of terrorism against
"an individual" acting "under actual or apparent authority, or color oflaw, of any foreign nation."
Id Thus, defendants in TVP A actions are foreign nationals or affiliated with a foreign government.
See, e.g., Warfaa v. Ali, 811 F.3d 653, 655 (4th Cir. 2016) (former Somali colonel); Yousufv.
Samantar, 699 F.3d 763, 765 (4th Cir. 2012) (former high-ranking

official in the Somali

government); Ochoa Lizarbe v. Rivera Rondon, 402 F. App'x 834, 836 (4th Cir. 2010) (former
Peruvian military officer). A suit against a foreign national with close ties to a foreign government
or military could present '''a grave affront' to [the] sovereignty" of that nation, as the suit against
Arab Bank did in Jesner. Jesner, 138 S. Ct. at 1407. Since claims against domestic corporations
do not present the same foreign-policy dilemma present in suits against foreign corporations or
individuals acting with the apparent authority of a foreign nation, the TVP A, while arguably
helpful in assessing whether Congress would support liability against foreign corporations under
the ATS, is oflimited assistance in assessing whether an ATS claim against a domestic corporation
is available. Thus, this Court declines to read from the TVP A a requirement that only individuals
may be sued under the ATS.

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Courts that have considered whether Jesner bars ATS suits against

u.s. corporations

have

similarly declined to conclude that it does so. In Doe I v. Nestle, S.A., 906 F.3d 1120 (9th Cir.
2018), the Ninth Circuit held that Jesner abrogated its earlier decision that corporations could be
liable under the ATS only "insofar as it applies to foreign corporations" and thus permitted ATS
claims against a domestic corporation to proceed. Id. at 1124. In Al Shimari v. CACI Premier
Tech., Inc., 320 F. Supp. 3d 781 (E.D. Va. 2018), in which foreign plaintiffs had sued a
corporation for its role as a

u.s.

u.s.

government contractor participating in the mistreatment of

detainees during the Iraq War, the court concluded that permitting an ATS suit against a U.S.
corporation "is consistent" with the purposes of the ATS. Id. at 782,787. Noting that Jesner "held
only that ATS suits may not proceed against foreign corporations" based on "foreign policy
concerns" and the conclusion that courts "are not well suited to make the required policy
judgments" implicated in such cases, the court determined that where "the lawsuit before this
Court involves foreign plaintiffs suing an American corporate defendant," it "fully aligns with the
original goals of the ATS: to provide a federal forum for tort suits by aliens against Americans for
international law violations." Id. at 783, 787.
Thus, the Court concludes that Jesner does not bar ATS suits against domestic
corporations. Jesner also provides no basis to revisit this Court's prior ruling, consistent with the
first prong of Sosa, that there is an international law norm barring nonconsensua1 medical
experimentation on human subjects. Alvarez I, 205 F. Supp. 3d at 689 (citing Abdullahi v. Pfizer,
Inc., 562 F.3d 163, 187 (2d Cir. 2009)); Alvarez 11,275 F. Supp. 3d at 683; see Abdullahi, 562
F.3d at 174-87). The Court will therefore not alter its prior decisions in this case.

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CONCLUSION
For the foregoing reasons, Defendants' Motion for Judgment on the Pleadings, ECF No.
174, will be DENIED. A separate Order shall issue.

Date: January 3, 2019
THEODORE D. CHUA
United States District Ji d e

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