Balintulo v. Ag
| Decision Date | 21 August 2013 |
| Parties | SAKWE BALINTULO, as personal representative of SABA BALINTULO, DENNIS VINCENT FREDERICK BRUTUS, MARK FRANSCH, as personal representative of ANTON FRANSCH, ELSIE GISHI, LESIBA KEKANA, ARCHINGTON MADONDO, as personal representative of MANDLA MADONDO, MPHO ALFRED MASEMOLA, MICHAEL MBELE, MAMOSADI CATHERINE MLANGENI, REUBEN MPHELA, THULANI NUNU, THANDIWE SHEZI, THOBILE SIKANI, LUNGISLIE NTSEBEZA, MANTOA DOROTHY MOLEFI, individually and on behalf of her deceased son, MNCEKELELI HENYN SIMANGENTLOKO, TOZAMILE BOTHA, MPUMELELO CILIBE, WILLIAM DANIEL PETERS, SAMUEL ZOYISILE MALI, MSITHELI WELLINGTON NONYUKELA, JAMES MICHAEL TAMBOER, NOTHINI BETTY DYONASHE, individually and on behalf of her deceased son, NONKULULEKO SYLVIA NGCAKA, individually and on behalf of her deceased son, HANS LANGFORD PHIRI, MIRRIAM MZAMO, individually and on behalf of her deceased son, Plaintiffs-Appellees, v. DAIMLER AG, FORD MOTOR COMPANY, and INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Before: CABRANES, HALL, and LIVINGSTON, Circuit Judges.
The question presented is whether to issue a writ of mandamus to the United States District Court for the Southern District of New York (Shira A. Scheindlin, Judge) to resolve in the defendants' favor these proposed class-action suits brought under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, on behalf of those harmed by the decades-long South African legal regime known as "apartheid." The plaintiffs seek damages for violations of customary international law committed by the South African government, allegedly aided and abetted by the South African subsidiary companies of the named corporate defendants—Daimler, Ford, and IBM. In short, the plaintiffs claim that these subsidiary companies sold cars and computers to the South African government, thus making the defendants, their parent companies, liable for the apartheid regime's innumerable race-based depredations and injustices, including rape, torture, and extrajudicial killings.
Although the plaintiffs did not claim that any of the South African government's alleged violations of the law of nations occurred in the United States, at the time they filed their complaint they assumed (as did most American courts) that no such geographical connection was necessary. Based on the same assumption, the District Court denied the defendants' motion to dismiss, which had asserted various grounds for dismissal, including that claims brought under the ATS cannot be based on "extraterritorial" conduct—i.e., conduct that occurred in the territory of a sovereign other than the United States. The District Court denied a motion to certify an interlocutory appeal, and the defendants thereupon sought immediate appellate review through a writ of mandamus and by invocation of the "collateral order" doctrine.
This putative appeal, held in abeyance pending a decision by the Supreme Court that was not issued until 2013, and now pending for four years, involves challenging and important questions regarding the immediate appealability of certain orders in cases brought under the Alien Tort Statute, where the United States government has informed the district court that the ongoinglitigation substantially threatens American foreign policy. We no longer need to answer those questions, however, because all of the underlying claims are plainly barred by the recent opinion of the Supreme Court in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), which held that federal courts may not, under the ATS, recognize common-law causes of action for conduct occurring in the territory of another sovereign. Id. at 1668—69. Because that decision provides a sufficient ground for dismissing all of the remaining claims, we deny mandamus relief. For the same reason, we conclude that the interests of judicial economy, and of the parties, are best served by holding this putative appeal in abeyance and enabling the District Court to consider a motion to dismiss the plaintiffs' remaining claims. The parties can then inform this Court, when appropriate, whether this appeal has been rendered moot.
Accordingly, the petition for a writ of mandamus is DENIED; the stay on proceedings in the District Court is VACATED; and any appellate jurisdiction that this Court may have pursuant to the collateral order doctrine is held in abeyance.
LISA S. BLATT (Peter L. Zimroth, Ramon P. Marks, Marcus A. Asner, on the brief), Arnold & Porter LLP, Washington, DC, and New York, NY; (Jerome S. Hirsch, Joseph N. Sacca, Gary J. Hacker, on the brief), Skadden, Arps, Slate, Meagher, & Flom LLP, New York, NY, for Defendant-Appellant Daimler AG.
SRI SRINIVASAN (Brian C. Anderson, Irving L. Gornstein, Anton Metlitsky, on the brief), O'Melveny & Myers LLP, Washington, DC, for Defendant-Appellant Ford Motor Company.
Keith R. Hummel, Teena-Ann Sankoorikal, James E. Canning, John E. Lazar, Cravath, Swaine, & Moore, LLP, New York, NY, for Defendant-Appellant IBM Corporation.
STEIG OLSON (Michael D. Hausfeld, Ralph J. Bunche, on the brief), Hausfeld, LLP, New York, NY, and Washington, DC; (Robert G. Kerrigan, on the brief), Kerrigan, Estess, Rankin & McLeod, LLP, Pensacola, FL; (Matt Schultz, on the brief), Levin Papantonio Thomas Mitchell Echsner & Proctor, PA, Pensacola, FL; (Charles Peter Abrahams, on the brief), Abrahams Kiewitz, Cape Town, South Africa; for Plaintffs-Appellees Sakwe Balintulo et al.
PAUL L. HOFFMAN (Adrienne Quarry, on the brief), Schonbrun Desimone Seplow Harrison & Hoffman, Venice, CA; (Jay J. Rice, Diane E. Sammons, on the brief), Nagel Rice, LLP, Roseland, NJ; (Tyler R. Giannini, Susan Farbstein, on the brief), International Human Rights Clinic, Human Rights Program, Harvard Law School, Cambridge, MA; (Judith Brown Chomsky, on the brief), Law Offices of Judith Brown Chomsky, Elkins Park, PA; (Helen I. Zeldes, on the brief), Zeldes & Haeggquist, LLP, San Diego, CA; (Dumisa Buhle Ntsebeza, on the brief), Duma Nokwe Group of Advocates, Sandton, South Africa; (Michael Francis Osborne, on the brief), Cape Town, South Africa; (John Sindiso Ngcebetsha, Gugulethu Oscar Madlanga, on the brief), Ngcebetsha Madlanga Attorneys, Randburg, South Africa; (Medi Mokuena, on the brief), Mokuena Attorneys, Johannesburg, South Africa); (Dan Stormer, Anne Richardson, on the brief), Hadsell Stormer Keeny Richardson & Renick LLP, Pasadena, CA; (Anthony DiCaprio, on the brief), Rye, NY; for Plaintiffs-Appellees Lungisile Ntsebeza et al.
LEWIS S. YELIN (Ian Heath Gershengorn, Acting Assistant Attorney General, Douglass N. Letter, Robert M. Loeb, Appellate Staff, on the brief), Civil Division, U.S. Department of Justice, Washington, DC; (Preet Bharara, U.S. Attorney, and David S. Jones, Assistant U.S. Attorney, on the brief), Office of the U.S. Attorney for the Southern District of New York, NY; (Joan E. Donoghue, on the brief), U.S. Department of State, Washington, DC; for Amicus Curiae United States of America, in support of Plaintiffs-Appellees.
Peter R. Rutledge, Athens, GA; Robin S. Conrad, Amar D. Sarwal, National Chamber Litigation Center, Inc., Washington, DC; for Amicus Curiae Chamber of Commerce of the United States, in support of Defendants-Appellants.
Klaus Botzet, Embassy of the Federal Republic of Germany, Washington, DC, for Amicus Curiae Federal Republic of Germany, in support of Defendants-Appellants.
Alan E. Untereiner, Mark T. Stancil, Damon W. Taaffe, Eva A. Temkin, Ariel N. Lavinbuk, Robbins, Russel, Englert, Orseck, Untereiner & Sauber LLP, Washington, DC, for Amici Curiae Federation of German Industries, Association of German Chambers of Industry and Commerce, and German American Chambers of Commerce, in support of Defendants-Appellants.
Terry Myers, Jeffrey L. Nagel, Gibbons, P.C., New York, NY, for Amici Curiae German Law Professors, in support of Defendants-Appellants.
Anthony D. Boccanfuso, Arnold & Porter, LLP, New York, NY, for Amici Curiae International Chamber of Commerce, in support of Defendants-Appellants.
Terry Myers, Jeffrey L. Nagel, Gibbons, P.C., New York, NY, for Amici Curiae International Law Professors, in support of Defendants-Appellants.
Jeffrey A. Lamken, Evan A. Young, Baker Botts L.L.P., Washington, DC, and Austin, TX, for Amici Curiae National Foreign Trade Council, USA*Engage, U.S. Council for International Business, Organization for International Investment, and National Association of Manufacturers, in support of Defendants-Appellants.
Julian Ku, Hofstra University Law School, Hempstead, NY; Michael D. Ramsey, University of San Diego Law School, San Diego, CA; for Amici Curiae Law Professors of International Law and U.S. Foreign Relations Law, in support of Defendants-Appellants.
Marco B. Simons, Richard L. Herz, Jonathan G. Kaufman, EarthRights International, Washington, DC, for Amicus Curiae EarthRights International, in support of Plaintiffs-Appellees.
Steven A. Kanner, Freed Kanner London & Millen LLC, Bannockburn, IL, for Amici Curiae Former Commissioners and Committee Members of South Africa's Truth and Reconciliation Commission, in support of Plaintiffs-Appellees.
Piper Hendricks, World Organization for Human Rights USA, Washington, DC, for Amicus Curiae International Center for Transitional Justice, in support of Plaintffs-Appellees.
William J. Aceves, California Western School of Law, San Diego, CA, for Amici Curiae International Law Scholars, in support of Plaintiffs-Appellees.
Robert N. Kaplan, Gregory K. Arenson, Kaplan Fox Kilsheimer LLP, New York, NY, for Amicus Curiae Joseph E. Stiglitz, in support of Plaintiffs-Appellees.
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