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The following decisions have just arrived via the LII's
direct Project HERMES feed from the Supreme Court. These
are the final decisions for the 2003-04 term. The Court will
issue its last order list tomorrow.
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SOSA V. ALVAREZ-MACHAIN (03-339)
Web-accessible at:
http://supct.law.cornell.edu/supct/html/03-339.ZS.html
Argued March 30, 2004 -- Decided June 29, 2004*
Opinion author: Souter
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The Drug Enforcement Administration (DEA) approved using
petitioner Sosa and other Mexican nationals to abduct respondent
Alvarez-Machain (Alvarez), also a Mexican national, from Mexico to
stand trial in the United States for a DEA agent's torture and murder.
As relevant here, after his acquittal, Alvarez sued the United States for
false arrest under the Federal Tort Claims Act (FTCA), which waives
sovereign immunity in suits "for ... personal injury ... caused by the
negligent or wrongful act or omission of any [Government] employee
while acting within the scope of his office or employment," 28 U.S.C.
sect. 1346(b)(1); and sued Sosa for violating the law of nations under
the Alien Tort statute (ATS), a 1789 law giving district courts "original
jurisdiction of any civil action by an alien for a tort only, committed in
violation of the law of nations ... ," sect.1350. The District Court
dismissed the FTCA claim, but awarded Alvarez summary judgment
and damages on the ATS claim. The Ninth Circuit affirmed the ATS
judgment, but reversed the FTCA claim's dismissal.
Held:
1. The FTCA's exception to waiver of sovereign immunity for claims
"arising in a foreign country," 28 U.S.C. sect. 2680(k), bars claims
based on any injury suffered in a foreign country, regardless of where
the tortious act or omission occurred. Pp. 4-17.
(a) The exception on its face seems plainly applicable to the facts
of this case. Alvarez's arrest was said to be "false," and thus tortious,
only because, and only to the extent that, it took place and endured in
Mexico. Nonetheless, the Ninth Circuit allowed the action to proceed
under what is known as the "headquarters doctrine," concluding that,
because Alvarez's abduction was the direct result of wrongful planning
and direction by DEA agents in California, his claim did not "aris[e] in" a
foreign country. Because it will virtually always be possible to assert
negligent activity occurring in the United States, such analysis must be
viewed with skepticism. Two considerations confirm this Court's
skepticism and lead it to reject the headquarters doctrine. Pp. 4-7.
(b) The first consideration applies to cases like this one, where harm
was arguably caused both by action in the foreign country and
planning in the United States.Proximate cause is necessary to
connect the domestic breach of duty with the action in the foreign
country, for the headquarters' behavior must be sufficiently close to the
ultimate injury, and sufficiently important in producing it, to make it
reasonable to follow liability back to that behavior. A proximate cause
connection is not itself sufficient to bar the foreign country exception's
application, since a given proximate cause may not be the harm's
exclusive proximate cause. Here, for example, assuming the DEA
officials' direction was a proximate cause of the abduction, so were the
actions of Sosa and others in Mexico. Thus, at most, recognition of
additional domestic causation leaves an open question whether the
exception applies to Alvarez's claim.
Pp. 8-9.
(c) The second consideration is rooted in the fact that the harm
occurred on foreign soil. There is good reason to think that Congress
understood a claim "arising in" a foreign country to be a claim for injury
or harm occurring in that country. This was the common usage of
"arising under" in contemporary state borrowing statutes used to
determine which State's limitations statute applied in cases with
transjurisdictional facts. And such language was interpreted in tort
cases in just the same way that the Court reads the FTCA today.
Moreover, there is specific reason to believe that using "arising in" to
refer to place of harm was central to the foreign country exception's
object. When the FTCA was passed, courts generally applied the
law of the place where the injury occurred in tort cases, which would
have been foreign law for a plaintiff injured in a foreign country.
However, application of foreign substantive law was what Congress
intended to avoid by the foreign country exception. Applying the
headquarters doctrine would thus have thwarted the exception's
object by recasting foreign injury claims as claims not arising in a foreign
country because of some domestic planning or negligence. Nor has
the headquarters doctrine outgrown its tension with the exception. The
traditional approach to choice of substantive tort law has lost favor, but
many States still use that analysis. And, in at least some cases the
Ninth Circuit's approach would treat as arising at headquarters, even
the later methodologies of choice point to the application of foreign
law. There is also no merit to an argument that the headquarters
doctrine should be permitted when a State's choice of law approach
would not apply the foreign law of the place of injury. Congress did
not write the exception to apply when foreign law would be applied.
Rather, the exception was written at a time when "arising in" meant
where the harm occurred; and the odds are that Congress meant
simply that when it used the phrase. Pp. 9-17.
2. Alvarez is not entitled to recover damages from Sosa under the
ATS. Pp. 17-45.
(a) The limited, implicit sanction to entertain the handful of
international law cum common law claims understood in 1789 is not
authority to recognize the ATS right of action Alvarez asserts here.
Contrary to Alvarez's claim, the ATS is a jurisdictional statute creating
no new causes of action. This does not mean, as Sosa contends, that
the ATS was stillborn because any claim for relief required a further
statute expressly authorizing adoption of causes of action. Rather, the
reasonable inference from history and practice is that the ATS was
intended to have prac
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