Today's oral argument in the consolidated cases Nestle USA v. Doe and Cargill v. Doe is the Supreme Court's fourth attempt to figure out the Alien Tort Statute (ATS), a mysterious relic of the Judiciary Act of 1789. The ATS has puzzled judges, Justices and law professors (including me) for decades, and thousands of pages have been written about it (including some by me). In the end, though, I've come to believe that the statute is really quite simple.
The ATS in its current version (not much changed from its 1789 version) provides that:
The [federal] 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.
On its face, then, it only provides jurisdiction. It's quite similar, in fact, to the federal diversity jurisdiction statute (28 U.S.C. 1332), which provides that federal courts shall have jurisdiction over suits between citizens of different states or between citizens of a state and citizens of a foreign country. And indeed the statutory predecessor of the federal diversity jurisdiction statute is (like the ATS) the 1789 Judiciary Act (Sections 9 and 11).
It's a basic proposition of civil procedure that jurisdiction is different from a cause of action. Once jurisdiction is established, the next question is what source of law (if any) gives the plaintiff a cause of action. Every case brought under federal diversity jurisdiction works this way. No one thinks Section 1332 itself provides a cause of action. In a Section 1332 case, a cause of action must be found under some other source of law — usually state law or (for injuries occurring abroad) foreign law.
The ATS should work the same way. It provides jurisdiction. It says nothing about a cause of action. So a cause of action must be found under some other source of law — again, usually state law or (for injuries occurring abroad) foreign law. As Section 1332 shows, that's perfectly normal.
Unfortunately, in the 2004 case Sosa v. Alvarez-Machain, the Supreme Court — after rightly finding that the ATS on its face was only jurisdictional — went on to say that the ATS might implicitly authorize federal courts to create common law causes of action for some international law violations. The Court explained that the enacting Congress would not have wanted the ATS to lie dormant until a later Congress created a cause of action. (It declined, though, to find a federal cause of action in the particular case, and advised great caution in finding such causes of action in later cases.)
But the Court's explanation makes no sense. No one thinks the federal diversity jurisdiction statute lies dormant because federal courts can't create federal causes of action under it. Nor should anyone think that about the ATS. In both situations, the causes of action can and should come from non-federal sources of law.
The Nestle/Cargill case illustrates this conclusion. Because the defendants, Nestle and Cargill, are U.S. corporations, and the plaintiffs are aliens, there is obviously federal jurisdiction under Section 1332. But once federal jurisdiction is established under Section 1332, plaintiffs would still need to show a cause of action under some non-federal source of law. Because the alleged harms occurred in the west African nation of Cote d'Ivoire (Ivory Coast), the most obvious source is Cote d'Ivoire law. Similarly, if jurisdiction is claimed under the ATS, plaintiffs should still need to find a cause of action, with the most obvious source being Cote d'Ivoire law. There's no need (or authority) for federal courts to create a federal cause of action.
The Supreme Court has struggled with the ATS in two post-Sosa cases, Kiobel v. Royal Dutch Petroleum Co.(2012) and Jesner v. Arab Bank (2017). Both cases declined to find a federal cause of action on the facts, for reasons that were not entirely satisfactory. The better answer in both cases, as in Nestle/Cargill, is that the ATS functions in the same way as its parallel provision from the 1789 Judiciary Act, the federal diversity statute: it provides jurisdiction but not a cause of action.
(For a longer version of this argument, see my article here.)
In Nestle/Cargill, this has the interesting result that the ATS is completely irrelevant. Federal jurisdiction exists under the diversity jurisdiction statute. The ATS adds nothing. The cases should be remanded for the plaintiffs to proceed under applicable non-federal causes of action. That is, I'm confident, exactly the way the ATS's framers would have expected the statute to operate. Sadly, I doubt the Court will get to that result.
Posted at 6:34 AM