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Adhikari v. Kellogg Brown & Root, Inc.

United States Court of Appeals, Fifth Circuit

January 3, 2017

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,
v.
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.

         Appeal from the United States District Court for the Southern District of Texas

          Before HIGGINBOTHAM, PRADO, and GRAVES, Circuit Judges.

          EDWARD C. PRADO, Circuit Judge

         In 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").[1] 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.

         We hold 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 AFFIRM.

         I. BACKGROUND

         A. Factual Background

         Plaintiffs-Appellants 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.

         In or 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.

         While 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 initially promised.

         In 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 complete."

         B. Procedural Background

         In 2008, Plaintiffs filed suit against KBR and Daoud. They asserted claims under the TVPRA and the ATS, and also brought common law negligence claims.[2] 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.

         In 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. § 1596.

         KBR 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.

         Plaintiffs 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.

         II. DISCUSSION

         Plaintiffs argue that we should allow their ATS, TVPRA, and common law tort claims to proceed. We address each claim in turn.

         A. The ATS Claims

         The 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. 2006)).

         "The 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 (2016).

         Plaintiffs 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.

         1. The Presumption Against Extraterritoriality

         The 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.

         A 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.'" Id.

         Step 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.

         As for 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."[3] 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).

         On 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 national interest."

         KBR 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.").

         Therefore, 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.").

         Step 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.

         We note 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. 1168 (2016).

         We have 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.

         2. Application of the Two-Step Framework

         We turn 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.

         Plaintiffs 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.

         Plaintiffs 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 extraterritoriality.

         a. Al Asad

         Plaintiffs 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 operations.

         In 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.[4] 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.

         Plaintiffs 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. at 481.

         At 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).[5] 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.

         b. U.S.-Based Conduct

         Plaintiffs 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] worksites."

         Whether 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.").

         Plaintiffs 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."

         Plaintiffs 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' action")).

         Further, 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.

         Lastly, 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 ...


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