RAMCHANDRA ADHIKARI; DEVAKA ADHIKARI; JIT BAHDUR KHADKA; RADHIKA KHADKA; BINDESHORE SINGH KOIRI; PUKARI DEVI KOIRI; CHITTIJ LIMBU; KAMALA THAPA MAGAR; MAYA THAPA MAGAR; BHAKTI MAYA THAPA MAGAR; TARA SHRESTHA; NISCHAL SHRESTHA; DIL BAHADUR SHRESTHA; GANGA MAYA SHRESTHA; SATYA NARAYAN SHAH; RAM NARYAN THAKUR; SAMUNDRI DEVI THAKUR; JITINI DEVI THAKUR; BHIM BAHADUR THAPA; BISHNU MAYA THAPA; BHUJI THAPA; KUL PRASAD THAPA; BUDDI PRASAD GURUNG, Plaintiffs-Appellants,
KELLOGG BROWN & ROOT, INCORPORATED; KELLOGG BROWN & ROOT SERVICES, INCORPORATED; KBR, INCORPORATED; KBR HOLDINGS, L.L.C.; KELLOGG BROWN & ROOT L.L.C.; KBR TECHNICAL SERVICES, INCORPORATED; KELLOGG BROWN & ROOT INTERNATIONAL, INCORPORATED; SERVICE EMPLOYEES INTERNATIONAL, INCORPORATED; OVERSEAS EMPLOYMENT ADMINISTRATION; OVERSEAS ADMINISTRATION SERVICES, Defendants-Appellees.
from the United States District Court for the Southern
District of Texas
HIGGINBOTHAM, PRADO, and GRAVES, Circuit Judges.
C. PRADO, Circuit Judge
2004, an Iraqi insurgent group kidnapped and murdered twelve
Nepali men as they traveled through Iraq to a United States
military base to work for Daoud & Partners
("Daoud"), a Jordanian corporation that had a
subcontract with Defendant-Appellee Kellogg Brown Root
("KBR"). In 2008, the
victims' families, and one Daoud employee who was not
captured (collectively "Plaintiffs"), sued Daoud
and KBR. Plaintiffs alleged that the companies
"willfully and purposefully formed an enterprise with
the goal of procuring cheap labor and increasing profits,
" and thereby engaged in human trafficking. Plaintiffs
brought causes of action under the Alien Tort Statute
("ATS"), the Trafficking Victims Protection
Reauthorization Act ("TVPRA"), and state common
law. Although Plaintiffs settled with Daoud, they have
continued their lawsuit against KBR. The district court,
after nearly six years of motion practice and discovery,
eventually dismissed all of Plaintiffs' claims.
that the district court's grant of summary judgment on
the ATS claims in favor of KBR was proper in light of the
Supreme Court's decision in Kiobel v. Royal Dutch
Petroleum Co., 133 S.Ct. 1659 (2013), which held that
the ATS did not apply extraterritorially. We also conclude
that the district court correctly dismissed the TVPRA claims
because (1) the TVPRA did not apply extraterritorially at the
time of the alleged conduct in 2004 and (2) applying a 2008
amendment to the TVPRA that had the effect of permitting
Plaintiffs' extraterritorial claims would have an
improper retroactive effect on KBR. Lastly, we hold that the
district court did not abuse its discretion in dismissing the
common law claims by refusing to equitably toll
Plaintiffs' state law tort claims. Accordingly, we
in this case are Buddi Gurung ("Plaintiff Gurung")
and surviving family members of eleven deceased men
(collectively, the "Deceased"). All Plaintiffs are
citizens of Nepal.
around 2004, the Deceased were recruited to work by a
Nepal-based recruiting company. As the district court found,
"each man was promised a hotel related job in
Jordan" and "each man's family took on
significant debt in order to pay recruitment fees." The
Deceased travelled from Nepal to Jordan where they were
housed by a Jordanian job-brokerage company, Morning Star for
Recruitment and Manpower Supply ("Morning Star").
Morning Star transferred the Deceased to Daoud. Daoud had a
subcontract with KBR, a U.S. military contractor, to provide
staff to operate the Al Asad Air Base ("Al Asad"),
a U.S. military base north of Ramadi, Iraq.
in Jordan, the Deceased "were subject to threats and
harm, " "their passports were confiscated, "
and they were "locked into a compound and
threatened." The Deceased were also told for the first
time that they were actually being sent to Iraq to work on Al
Asad and would be paid only three-quarters of what they were
August 2004, Daoud transported the Deceased into Iraq in an
unprotected automobile caravan. The Deceased, however, never
made it to the base. While traveling through Iraq, they were
captured by Iraqi insurgents. The insurgents posted online
videos of the Deceased in which the Deceased said that they
had been "trapped and deceived and sent to Jordan"
and had been "forced . . . to go to Iraq."
Horrifically, the Iraqi insurgents executed the Deceased, and
a video of the executions was broadcast by international
media outlets, Plaintiff Gurung travelled in the same
automobile caravan as the Deceased. He also had been
recruited to work in Nepal and had travelled to Jordan, but
the car he was in was not captured and he arrived at Al Asad.
Plaintiff Gurung worked on the base as a "warehouse
loader/unloader" for approximately fifteen months.
Plaintiff Gurung alleged that Daoud and KBR told him that
"he could not leave until his work in Iraq was
2008, Plaintiffs filed suit against KBR and Daoud. They
asserted claims under the TVPRA and the ATS, and also brought
common law negligence claims. In November 2009, the district court
granted KBR's motion to dismiss Plaintiffs' common
law negligence claims. It held that these claims were barred
by the statute of limitations and denied Plaintiffs'
request for equitable tolling. However, the court denied
KBR's motion as to Plaintiffs' TVPRA and ATS claims.
August 2013, the district court granted in part and denied in
part KBR's motion for summary judgment. It dismissed
Plaintiffs' ATS claims against KBR in light of the
Supreme Court's intervening decision in Kiobel.
In Kiobel, the Supreme Court held that the
presumption against extraterritoriality applies to ATS claims
and nothing in the statute rebuts the presumption. 133 S.Ct.
at 1669. The district court held that Kiobel
compelled dismissal of the ATS claims because "all
relevant conduct by Daoud and KBR occurred outside of the
United States." The court denied KBR's motion for
summary judgment on the TVPRA claim, noting that the law was
"expressly extraterritorial" under 18 U.S.C. §
moved for interlocutory review of the district court's
TVPRA ruling under 28 U.S.C. § 1292(b). In response, the
district court reconsidered its denial of summary judgment
sua sponte on the TVPRA claim. The court reversed its
previous decisions and held that the TVPRA-like the ATS-did
not apply extraterritorially at the time of the alleged
conduct in 2004. It explained that although Congress passed
an amendment in 2008 that provided federal courts with
jurisdiction over purely extraterritorial TVPRA civil claims,
see Pub. L. No. 110-457, § 223(a), 122 Stat.
5044 (2008) (codified at 18 U.S.C. § 1596(a)), this
amendment had the effect of altering the parties'
substantive rights and, as a result, could not be applied
retroactively to KBR's alleged 2004 conduct.
responded by filing motions for rehearing on the district
court's TVPRA and ATS rulings and for leave to amend
their ATS claims. In March 2015, the district court denied
these motions. This appeal followed.
argue that we should allow their ATS, TVPRA, and common law
tort claims to proceed. We address each claim in turn.
The ATS Claims
district court dismissed the ATS claims at summary judgment.
We review a grant of summary judgment de novo. RTM Media,
LLC v. City of Houston, 584 F.3d 220, 223 (5th Cir.
2009). "Summary judgment is proper when the evidence
demonstrates that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law." Id. (quoting
Chacko v. Sabre, Inc., 473 F.3d 604, 609 (5th Cir.
ATS provides, in full, that '[t]he 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.'" Kiobel,
133 S.Ct. at 1663 (quoting 28 U.S.C. § 1350). Although
the statute "provides district courts with jurisdiction
to hear certain claims, " it "does not expressly
provide any causes of action." Id. Rather, the
ATS provides jurisdiction for a "modest number of
international law violations" that are derived from
federal common law. Id. (quoting Sosa v.
Alvarez-Machain, 542 U.S. 692, 724 (2004)). To be
cognizable, a plaintiff's claims must be stated
"with the requisite definite content and acceptance
among civilized nations." Doe v. Drummond Co.,
782 F.3d 576, 583 (11th Cir. 2015) (quoting Kiobel,
133 S.Ct. at 1663), cert. denied, 136 S.Ct. 1168
contend that KBR's alleged involvement in the trafficking
of the Deceased and Plaintiff Gurung and in the forced labor
of Plaintiff Gurung at Al Asad constitute actionable torts
under the ATS. KBR counters that Plaintiffs' allegations
of misconduct in foreign countries are barred by the
presumption against extraterritoriality.
The Presumption Against Extraterritoriality
presumption against extraterritoriality is a canon of
statutory interpretation rooted in the "longstanding
principle" that a federal statute "is meant to
apply only within the territorial jurisdiction of the United
States" absent congressional intent to the contrary.
Morrison v. Nat'l Austl. Bank Ltd., 561 U.S.
247, 255 (2010) (quoting EEOC v. Arabian Am. Oil
Co., 499 U.S. 244, 248 (1991)). "When a statute
gives no clear indication of an extraterritorial application,
it has none." Id.
two-step inquiry governs the presumption's application to
a statute. RJR Nabisco, Inc. v. European Cmty., 136
S.Ct. 2090, 2101 (2016). First, "we ask whether the
presumption against extraterritoriality has been rebutted-
that is, whether the statute gives a clear, affirmative
indication that it applies extraterritorially."
Id. Second, "[i]f the statute is not
extraterritorial, then . . . we determine whether the case
involves a domestic application of the statute, and we do
this by looking to the statute's 'focus.'"
two's "focus" inquiry is derived from the
Supreme Court's decision in Morrison.
See 561 U.S. at 255. As the Supreme Court explained,
whether the presumption bars a claim is not always
"self-evidently dispositive" because cases will
often have some "contact with the territory of the
United States." Id. at 266. In
Morrison, the plaintiffs had brought suit under
§ 10(b) of the Securities Exchange Act of 1934
("Exchange Act") based on alleged
misrepresentations made in connection with the sales and
purchases of securities registered on foreign exchanges.
Id. at 250-53. Some of these misrepresentations
occurred in the United States. Id. After holding the
presumption against extraterritoriality applied to §
10(b), id. at 265, the Court "engaged in a
separate inquiry to determine whether the complaint . . .
involved a permissible domestic application of
§ 10(b) because it alleged that some of the relevant
misrepresentations were made in the United States."
RJR Nabisco, 136 S.Ct. at 2100. The Court's
separate inquiry considered the statute's
"focus." Id.; Morrison, 561 U.S.
at 266. The Court ruled that the Exchange Act's
"focus" was "not upon the place where the
deception originated, but upon purchases and sales of
securities in the United States." Morrison, 561
U.S. at 266. It concluded that because the statute was
focused on domestic securities transactions, the
plaintiffs' alleged domestic activity-the
misrepresentations-made in connection with a foreign
transaction failed to show a permissible domestic application
of the statute. See id. at 267; RJR
Nabisco, 136 S.Ct. at 2100.
the ATS, the Supreme Court in Kiobel addressed step
one of the extraterritoriality inquiry: the Court held that
the "presumption against extraterritoriality applies to
claims under the ATS, and that nothing in the statute rebuts
that presumption." 133 S.Ct. at 1669. In that case,
Nigerian nationals sued Dutch, British, and Nigerian
corporations, alleging that they aided and abetted the
Nigerian military in committing international law violations
in Nigeria. Id. at 1662. The Court held that the ATS
did not confer jurisdiction because "all the relevant
conduct took place outside the United
States." Id. at
1669. Although the Court found that the presumption precluded
the plaintiffs' claims "[o]n these facts, " it
did not foreclose the possibility that there may be
circumstances in which the bar would not apply. Id.
The Court stated that the ATS could create jurisdiction for
"claims [that] touch and concern the territory of the
United States . . . with sufficient force to displace the
presumption against extraterritorial application."
Id. (citing Morrison, 561 U.S. at 265-73).
Notably, in discussing claims that "touch and
concern" the United States, the Court cited to
Morrison and its "focus" inquiry. See
Kiobel, 133 S.Ct. at 1669 (citing Morrison, 561
U.S. at 265-73).
appeal, the parties dispute the meaning of
Kiobel's "touch and concern" language,
including how to reconcile it with Morrison's
"focus" inquiry. Plaintiffs, along with amici
curiae, suggest that Kiobel provided an ATS-specific
test that largely supplants Morrison's
"focus" analysis. In support, Plaintiffs point to
the Fourth Circuit's decision in Al Shimari v. CACI
Premier Tech., Inc., 758 F.3d 516 (4th Cir. 2014), one
of the first decisions to analyze Kiobel's
"touch and concern" language. In Al
Shimari, the court observed that "the 'claims,
' rather than the alleged tortious conduct, must touch
and concern United States territory with sufficient force,
suggesting 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."
Id. at 527 (quoting Kiobel, 133 S.Ct. at
1669). Plaintiffs contend that Kiobel mandates a
fact-specific analysis that looks to "the totality of
[their] claim's connection to U.S. territory and the
responds that RJR Nabisco makes clear that
Morrison's "focus" test still governs.
We agree. In RJR Nabisco, the Supreme Court observed
that both "Morrison and Kiobel reflect
a two-step framework for analyzing extraterritoriality
issues." 136 S.Ct. at 2101. As the Court clarified,
Kiobel did not reach step two-i.e., the Court
"did not need to determine, as [it] did in
Morrison, the statute's
'focus'"-because "'all the relevant
conduct' regarding" the alleged international-law
violations occurred overseas. Id. (quoting
Kiobel, 133 S.Ct. at 1670). In other words, the
Court in Kiobel did not disclaim the focus inquiry
for ATS claims. It simply pretermitted the issue. See
Balintulo v. Daimler AG, 727 F.3d 174, 191 (2d Cir.
2013) ("[S]ince all the relevant conduct in
Kiobel occurred outside the United States-a
dispositive fact in light of the Supreme Court's
holding-the Court had no reason to explore, much less
explain, how courts should proceed when some of the relevant
conduct occurs in the United States.").
if an ATS claim involves some domestic activity relevant to
the claim, "further analysis" is required.
Morrison, 561 U.S. at 266; accord RJR
Nabisco, 136 S.Ct. at 2100. This analysis-step two of
the extraterritoriality inquiry-requires looking to the
ATS's focus, which resolves whether the claims
"touch and concern" the United States territory
with "sufficient force" such that the presumption
against extraterritoriality is displaced. Kiobel,
133 S.Ct. at 1669; see also Mastafa v. Chevron
Corp., 770 F.3d 170, 182 (2d Cir. 2014) ("An
evaluation of the presumption's application to a
particular case is essentially an inquiry into whether the
domestic contacts are sufficient to avoid triggering the
presumption at all.").
two, however, requires distinguishing between conduct
underlying the plaintiff's claim-i.e., cause of
action-from conduct relevant to the statute's focus. Only
conduct relevant to the statute's focus determines
domestic application of the statute. See Morrison,
561 U.S. at 266. Thus, for ATS claims, "[i]f the conduct
relevant to the [ATS's] focus occurred in the United
States, then the case involves a permissible domestic
application even if other conduct occurred abroad."
RJR Nabisco, 136 S.Ct. at 2101. But "if the
conduct relevant to the focus occurred in a foreign country,
then the case involves an impermissible extraterritorial
application regardless of any other conduct that occurred in
U.S. territory." Id.
that other circuits have offered differing interpretations of
Kiobel's "touch and concern" language,
including to what extent it adopts Morrison's
"focus" inquiry. The Ninth Circuit has explicitly
held that Kiobel "did not incorporate
Morrison's focus test, " Doe I v.
Nestle USA, Inc., 766 F.3d 1013, 1028 (9th Cir. 2014),
although the eight judges that dissented from denial of
rehearing en banc disagreed, see Doe I v. Nestle USA,
Inc., 788 F.3d 946, 953 (9th Cir. 2015) (Bea, J.,
dissenting). By contrast, the Second Circuit has held that
Morrison controlled its ATS analysis by requiring
courts to evaluate "the 'territorial event[s]'
or 'relationship[s]' that were the 'focus' of
the ATS." Mastafa, 770 F.3d at 184 (quoting
Morrison, 561 U.S. at 266). The Eleventh Circuit has
adopted a hybrid approach: it "amalgamate[d]
Kiobel's standards with Morrison's
focus test, considering whether 'the claim' and
'relevant conduct' are sufficiently 'focused'
in the United States to warrant displacement and permit
jurisdiction." Doe v. Drummond, 782 F.3d at 590
(quoting Baloco v. Drummond Co., 767 F.3d 1229,
1238-39 (11th Cir. 2014)), cert. denied, 136 S.Ct.
not yet entered the jurisprudential fray surrounding
Kiobel. Nevertheless, we conclude that the Supreme
Court's guidance in RJR Nabisco-which was issued
after the foregoing circuit court opinions-is determinative
and, in turn, apply RJR Nabisco's two-step
framework. See 136 S.Ct. at 2101. As explained
further below, our approach largely comports with the Second
Circuit's "ATS 'focus' analysis" to the
extent it involves "examining the conduct alleged to
constitute violations of the law of nations, and the location
of that conduct." Mastafa, 770 F.3d at 185.
Application of the Two-Step Framework
to applying the two-step framework where, as here, the ATS
claims involve extraterritorial conduct. Kiobel
answered step one: the ATS does not apply extraterritorially.
Thus, under step two, we must determine whether Plaintiffs
have sought a domestic application of the statute. We first
look to whether there is any domestic conduct relevant to
Plaintiffs' claims under the ATS. If we conclude that the
record is devoid of any domestic activity relevant to
Plaintiffs' claims, our analysis is complete: as in
Kiobel, the presumption against extraterritoriality
bars the action. See Kiobel, 133 S.Ct. at 1669;
RJR Nabisco, 136 S.Ct. at 2101.
allege that KBR violated international law by engaging in a
scheme to traffic Plaintiffs and to subject them to forced
labor on Al Asad. As for the claim regarding the Deceased,
the recruitment, transportation, and alleged detention by
Daoud and Morning Star all occurred in Nepal, Jordan, and
Iraq. The Deceased never arrived at Al Asad. Thus, none of
this overseas conduct relevant to their trafficking
claim-even assuming without deciding that it can be imputed
to KBR-could support the conclusion that Plaintiffs seek to
apply the ATS domestically.
further contend that the district court had jurisdiction
under the ATS in light of KBR's conduct (1) on Al Asad
and (2) within the United States, which Plaintiffs argue is
sufficient to displace the presumption against
argue that Al Asad was under the jurisdiction and control of
the United States and that, as a result, KBR's actions on
the base constitute domestic conduct for purposes of their
ATS claims. In particular, they claim that KBR's conduct
on Al Asad was integral to Plaintiff Gurung's claim that
he was subject to forced labor during the fifteen months he
worked on the base. They also contend that KBR's conduct
at Al Asad is relevant to the claim that the Deceased were
victims of human trafficking. Notably, the district court
found that Plaintiffs had presented a genuine dispute of
material fact whether KBR "knowingly obtained trafficked
labor during the relevant time period, " although it
concluded that evidence pointed only to KBR's Al Asad
deciding whether KBR's conduct on Al Asad constitutes
domestic conduct, we first address how to distinguish between
domestic and foreign conduct for purposes of the presumption
against extraterritoriality. KBR contends that the question is a matter
of de jure sovereignty, arguing that "Iraq's
retention of de jure sovereignty over Al Asad
defeats characterizing it as U.S. territory."
See Coalition Provisional Authority Order No. 17
(Revised) § 9 (noting that any premises operated by the
Multinational Forces in Iraq "remain Iraqi
territory"). KBR's assertion is not without support
in recent Supreme Court case law. In Kiobel, the
Court held that the issue was whether a claim under the ATS
"may reach conduct occurring in the territory of a
foreign sovereign." 133 S.Ct. at 1664 (emphasis
added). RJR Nabisco also suggests that domestic
conduct is that which "occurred in the United
States" rather than "in a foreign country."
136 S.Ct. at 2101. Nevertheless, the Supreme Court in
Kiobel and RJR Nabisco did not squarely
address whether what constitutes the United States also
encapsulates its de facto territory.
counter by citing to the Supreme Court's decision in
Rasul v. Bush, 542 U.S. 466 (2004), which suggests a
functional inquiry may be applicable. In Rasul, the
Court addressed whether the federal habeas statute, 28 U.S.C.
§ 2241, applied to persons detained at the United States
Naval Base at Guantanamo Bay, Cuba. Id. at 470-75.
The Court explained that "[w]hatever traction the
presumption against extraterritoriality might have in other
contexts, it certainly has no application to the operation of
the habeas statute with respect to persons detained within
'the territorial jurisdiction' of the United
States." Id. at 480 (quoting Foley Bros.,
Inc. v. Filardo, 336 U.S. 281, 285 (1949)). In coming to
this conclusion, the Court highlighted that the "United
States exercise[d] 'complete jurisdiction and
control' over the Guantanamo Bay Naval Base, and may
continue to exercise such control permanently if it so
chooses." Id. (quoting Treaty Between the
United States of America and Cuba, art. 3, May 29, 1934).
However, the Court also noted its conclusion was supported by
the Government's concession that the habeas statute
"would create federal-court jurisdiction over the claims
of an American citizen held at the base." Id.
least one court has observed that Rasul's
holding is essentially limited to the habeas context. See
Marshall v. Exelis Sys. Corp., No. 13-CV-00545, 2014 WL
1213473, at *7 (D. Colo. Mar. 24, 2014). Regardless, we need not resolve to what
extent Rasul's reasoning extends beyond the
habeas context for purposes of the presumption against
extraterritoriality. Assuming arguendo that it
applies here, Plaintiffs have failed to establish that the
United States controlled Al Asad in 2004 such that it
constituted the territory of the United States. As other
courts have found, a U.S. military base does not constitute
de facto territory where "the United States has not
demonstrated intent to exercise sovereignty over" that
base permanently. Marshall, 2014 WL 1213473, at *6;
Al Maqaleh v. Gates, 605 F.3d 84, 97 (D.C. Cir.
2010) (rejecting "the notion that [the United
States'] de facto sovereignty extends to"
Bagram Airfield in Afghanistan where "there is no
indication of any intent to occupy the base with
permanence"). Here, in contrast with the Guantanamo Bay
Naval Base-over which the United States had
"unchallenged and indefinite control, "
Rasul, 542 U.S. at 487 (Kennedy, J., concurring)-the
United States' use of Al Asad had only begun in 2003, one
year before the conduct at issue. Further, it lasted until
only 2011. On this record, we are unconvinced that Al Asad
constituted de facto territory of the United States in 2004.
Consequently, because KBR's actions at Al Asad occurred
in Iraq and not the United States, those actions cannot
constitute domestic conduct relevant to their ATS claims.
also argue that U.S.-based conduct rebuts the presumption
against extraterritoriality. First, they cite KBR's
domestic payments to Daoud, the subcontractor that hired the
Deceased and Plaintiff Gurung. Second, they claim that
employees based in Houston, Texas, were "aware of
allegations of human trafficking at [KBR's]
Plaintiffs seek a domestic application of the statute is
determined by the location of the conduct relevant to the
ATS's focus. See RJR Nabisco, 136 S.Ct. at 2101.
Thus, we ask what the "'focus' of congressional
concern" is with the ATS. Morrison, 561 U.S. at
266. We agree with the district court that the ATS's
focus is the "tort . . . committed in violation of the
law of nations or a treaty of the United States." 28
U.S.C. § 1350. That is, the focus is conduct that
violates international law, which the ATS "seeks to
'regulate'" by giving federal courts
jurisdiction over such claims. Morrison, 561 U.S. at
267. And if that conduct "occurred in a foreign country,
then the case involves an impermissible extraterritorial
application regardless of any other conduct that occurred in
U.S. territory." RJR Nabisco, 136 S.Ct. at
2101; see also Mastafa, 770 F.3d at 185 (noting that
the "ATS 'focus' analysis" requires
"examining the conduct alleged to constitute violations
of the law of nations, and the location of that
conduct"); Doe v. Drummond, 782 F.3d at 592
("[O]ur jurisdictional inquiry requires us to consider
the domestic or extraterritorial location where the defendant
is alleged to engage in conduct that directly or secondarily
results in violations of international law within the meaning
of the ATS.").
allege that KBR was directly liable for the tort of human
trafficking and forced labor. However, all the conduct
comprising the alleged international law violations occurred
in a foreign country. As the district court explained,
"Plaintiffs can no more pursue an ATS claim against KBR
based on those extraterritorial actions than they can pursue
an ATS claim against Daoud."
have failed to show how KBR's alleged financial
transactions permit a domestic application of the ATS. They
contend that KBR "transferred payments to [Daoud] from
the United States, using New York Banks." However, they
failed to connect the alleged international law violations to
these payments or demonstrate how such payments-by
themselves- demonstrate that KBR's U.S.-based employees
actually engaged in trafficking the Deceased or forcing
Plaintiff Gurung to work on its base. See Mastafa,
770 F.3d at 185 (citing Balintulo, 727 F.3d at 192
(holding that the plaintiffs' "allegations were
insufficient to displace the presumption" against
extraterritoriality where "defendants' alleged
domestic conduct lacked a clear link to the human rights
abuses occurring in South Africa that were at the heart of
Plaintiffs' contention that KBR's U.S.-based
employees may have known about "allegations" of
human rights abuse by Daoud or KBR overseas is not enough to
raise a genuine fact dispute that those employees were
directly liable for violating international law. In response
to Plaintiffs' motion for reconsideration of its ruling,
the district court acknowledged that Plaintiffs had
introduced some evidence suggesting KBR knew it obtained
trafficked labor. However, it noted that such evidence only
implicated KBR's operations overseas. Plaintiffs had
failed to introduce any evidence indicating that KBR's
U.S.-based employees either (1) "understood the
circumstances surrounding Daoud's 'recruitment'
and 'supply' of third-country nationals like
Plaintiffs" or (2) "worked to prevent those
circumstances from coming to light or Daoud's practices
from being discontinued." Further, Plaintiffs
effectively concede this point: in reference to the district
court's reasoning that U.S.-based employees did not
"cover up" human trafficking, they argue they
"would have specifically alleged such conduct by
U.S.-based KBR employees" had they been permitted to
amend their complaint.
we find Plaintiffs' alternative arguments unpersuasive.
They note that the Supreme Court in Kiobel reasoned
the presumption against extraterritoriality serves to protect
against "international discord" that could result
if U.S. law governed overseas. Kiobel, 133 S.Ct. at
1661 (citing Arabian Am. Oil Co., 499 U.S. at 248).
Relying on this language, Plaintiffs argue that
Kiobel established the inverse rule: the presumption
does not apply in cases where entertaining the ATS claim
would not "negatively impact U.S. foreign
policy." They further contend that refusing to apply the
presumption here would promote U.S. foreign policy because it
would enable Plaintiffs to hold a military contractor such as
KBR liable for conduct on a U.S. military base. Relatedly,
Plaintiffs argue that their claims are distinguishable ...