No.

14-1011

In The
SUPREME COURT OF THE UNITED STATES
Does 1-144 et al.,
Petitioners,
vs.
CHIQUITA BRANDS
INTERNATIONAL. INC. et al.,
Respondents.
_____________
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Eleventh Circuit
_____________
SUPPLEMENTAL BRIEF
CITING NEW AUTHORITY
______________
Paul David Wolf
Attorney for Does 1-144,
1-976, 1-677, 1-254
P.O. Box 46213
Denver, CO 80201
(202) 431-6986
paulwolf@yahoo.com

Pursuant to Rule 15.8, the Petitioners, Does 1144 et. al., wish to bring to the Court's attention the
March 25, 2015 decision of the Eleventh Circuit
Court of Appeals in Jane Doe et al. v. Drummond
Company Inc., et al., No. 13-15503, attached hereto
as a Supplemental Appendix. In Drummond, the
Eleventh Circuit itself used the analysis urged by the
petitioners.
SUPPLEMENTARY ARGUMENT
I.

The decision below conflicts with the

Eleventh Circuit's more recent decision
in Doe v. Drummond.

In Drummond, the Eleventh Circuit found

that (1) the U.S. Citizenship of the defendant; (2) the
U.S. interests involved; and (3) some alleged U.S.based conduct were all relevant to its determination
of whether that case touched and concerned the
territory of the U.S. with sufficient force to displace
the presumption against the extraterritorial
application of the Alien Tort Statute.
See
Supplemental Appendix at Supp. App. 33-50. In
formulating its analytical method, the Drummond
panel compared the ways the Second, Fourth, Ninth,
and Eleventh Circuits have analyzed the "touch and
concern" language in Kiobel v. Royal Dutch
Petroleum Company, 133 S.Ct. 1659 (2013). See
Supp. App. 16-29.
In Drummond, the presumption was not
displaced, due to the particular facts of that case.

However, the court's analysis is in stark contrast to

that of the panel in the instant case, which held that
none of these factors were even relevant. According
to the panel in this case, only the place of injury
should be considered.
This shows disagrement
within the Eleventh Circuit as to the reach of the
ATS after Kiobel.
The panel in Drummond had a difficult time
following the court's analysis in this case,1 and cited
extensively from Judge Martin's dissent, rather than
the majority opinion. For example:
Although the Cardona majority quoted
Kiobels touch and concern language, it
stopped short of fully interpreting the test,
instead noting that the case in Kiobel was in
some ways parallel to the one before the court
in Cardona. See id. at 1189, 1191 (majority
opinion).
Supp. App. 23. The court could only speculate about
the reasoning of the majority in Cardona:
The majority opinion in Cardona offers only
limited guidance as to the interpretation of
Kiobel and the application of the presumption
against extraterritoriality. However, since the
court held that the ATS did not confer
jurisdiction, the majority must have concluded
that the plaintiffs allegations in the case
before it did not touch and concern the
The 11th Circuit's decision in the instant case is referred to
throughout as "Cardona", which is the name of a petitioner in
the related case, 14-777.
1

territory of the United States with sufficient

force to displace the presumption.
Id. The Drummond panel continued:
In Cardona, the plaintiffs alleged that the
defendants participated in a campaign of
torture and murder in Colombia by reviewing,
approving, and concealing a scheme of
payments and weapons shipments to
Colombian terrorist organizations, all from
their corporate offices in the territory of the
United States. See 760 F.3d at 1192 (Martin,
J., dissenting). The majority must not have
considered this factor dispositive, given that it
made no reference to this allegation in holding
that the presumption was not displaced.
Supp. App. 40. The Drummond panel concluded its
analysis of the instant case as follows:
Thus, without further analysis, Cardona
found that, like Kiobel, [a]ll the relevant
conduct in [this] case took place outside the
United States, and the plaintiffs could not
anchor ATS jurisdiction in the nature of the
defendants as United States corporations to
make the statute apply extraterritorially. See
id. at 1189.
Supp. App. 23. This shows disagreement within the
Eleventh Circuit as to the reach of the ATS, and why
the Supreme Court should consider this case. The
Drummond panel's holding is precisely what the
petitioners in this case are arguing:

We hold now, in accord with the other circuit

courts of appeals to consider this question,
that the jurisdictional inquiry requires looking
to the plaintiffs specific claim to determine
what contacts with or connections to the
United States are relevant; thus, the inquiry
may indeed extend to the place of decisionmaking.
Supp. App. 42. The Supreme Court should vacate
the decision below, and remand the case to the
District Court for reconsideration of relevant
contacts with the territory of the United States.
Respectfully submitted this 1st day of April, 2015.

Paul David Wolf

DC Bar #480285
Attorney for Does 1-144,
1-976, 1-677 and 1-254
P.O. Box 46213
Denver, CO 80201
(202) 431-6986

Table of Contents
of Supplemental Appendix
Decision of the Eleventh Circuit
Court of Appeals in Jane Doe et al.
v. Drummond Company Inc., et al.,
No. 13-15503, March 25, 2015. ...........

Supp. App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15503
________________________
D.C. Docket No. 2:09-cv-01041-RDP
JANE DOE, et al.,
Plaintiffs Appellants,
versus
DRUMMOND COMPANY, INC., et al.,
Defendants Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(March 25, 2015)
Before WILSON and ROSENBAUM, Circuit Judges,
and SCHLESINGER,*
District Judge.
*Honorable Harvey E. Schlesinger, United States
District Judge for the Middle District of Florida,
sitting by designation.
WILSON, Circuit Judge:

Supp. App. 1

Following a prolonged period of civil unrest in

the Republic of Colombia, plaintiffs-appellants
(Plaintiffs) brought the instant action on behalf of
over one hundred Colombian citizens killed by
violent paramilitaries in the ensuing armed conflict.
Plaintiffs, the legal heirs of the decedents, filed suit
in federal court against numerous defendantsappellees, including a supranational coal mining
company based in Alabama, its subsidiary, and
several of its high-ranking corporate officers
(collectively, Defendants). Averring that Defendants
engaged the paramilitaries, known as the
Autodefensas Unidas de Colombia (AUC), to
eliminate suspected guerilla groups from around the
companys mining operations in Colombia, Plaintiffs
contend their innocent decedents were incidental
casualties of Defendants arrangement with the
AUC.
Specifically, Plaintiffs allege that the AUC,
acting at the behest and on behalf of Defendants,
committed a series of international law violations,
including extrajudicial killings, war crimes, and
crimes against humanity, against Plaintiffs family
members in Colombia. Claiming that Defendants
aided and abetted, conspired with, and entered into
an agency relationship with the AUC, Plaintiffs
brought suit under the Alien Tort Statute (ATS), 28
U.S.C. 1350; the Torture Victim Protection Act of
1991 (TVPA), Pub. L. No. 102-256, 106 Stat. 73
(codified at 28 U.S.C. 1350 note); and Colombias
wrongful death laws.
The district court found that the Supreme
Courts decision in Kiobel v. Royal Dutch Petroleum

Supp. App. 2

Co., 569 U.S. ___, 133 S. Ct. 1659 (2013), required

dismissal of Plaintiffs ATS claims, and the court
entered summary judgment in Defendants favor on
those claims. In a series of opinions, the district court
also dismissed Plaintiffs TVPA claims on summary
judgment. Further, the district court declined to
exercise supplemental jurisdiction over Plaintiffs
wrongful death claims under Colombian law and
denied Plaintiffs motion to vacate the district courts
grants of summary judgment, which Plaintiffs sought
in order to proceed with their Colombian wrongful
death claims.
Plaintiffs appeal each of the district courts
opinions and the holdings contained therein. We
provide a general background of the proceedings
below before turning to the issues presented on
appeal by Plaintiffs claims under the ATS, the
TVPA, and Colombian law, respectively. After careful
consideration of the parties briefs and those filed by
the amici, the record on appeal, and the relevant
legal authorities, we affirm the district courts
rulings.
I. PROCEDURAL BACKGROUND
On May 7, 2009, Plaintiffs filed a complaint
against Defendants for equitable relief and damages
under the ATS, the TVPA, and the wrongful death
laws of Colombia. Defendants include Drummond
Company, Inc., a closely-held coal mining corporation
based
in
Alabama
(Drummond
Company);
Drummond Ltd., Drummond Companys whollyowned subsidiary in charge of day-to-day mining
operations in Colombia; and two corporate officers,

Supp. App. 3

James Michael Tracy and Augusto Jimenez.1

Drummond Company and Drummond Ltd. are
incorporated in and maintain their principal place of
business in Alabama. Plaintiffs, who are citizens of
Colombia and resided there at time of suit, used the
pseudonyms Jane Doe and Peter Doe in their
initial filing.
Before the district court, Plaintiffs averred
that Defendants provided substantial financial and
material support to the violent paramilitaries within
the AUC from 1996 until 2006, when the AUC
demobilized.
They
further
contended
that
Defendants continued to provide this support despite
being fully aware that the AUC was designated a
foreign terrorist organization by the U.S. government
in 2001. The complaint alleged that Defendants paid
the AUCthrough both direct payments to the AUC
as well as indirect payments funneled to the AUC
through the Colombian military in the form of
unrestricted fundsto provide security for
Drummond Companys mining operations and
facilities.

Tracy began working for Drummond Company in 1975 and

thus has had various roles and titles within the corporation,
including President and Chief Operating Officer of Drummond
Ltd., and, at various times, Vice President of Special Projects,
Vice President and Assistant to the CEO, and President of
Mining for Drummond Company. As pertinent here, he was in
charge of mining and security in Colombia. Jimenez served as
President of Drummond Ltd.s Colombian branch, supervising
the development and implementation of security plans. Tracy is
a U.S. citizen, whereas Jimenez is a Colombian citizen.
1

Supp. App. 4

Defendants security objectives allegedly

included driving competing, non-AUC guerilla
fighters out of the area surrounding Defendants
mining operations and rail line and ensuring that the
civilian population in and around that area would
not provide any support to guerilla groups or rebels.
Incidental to these objectives, the purported
arrangement between Defendants and the AUC
resulted in the AUC killing numerous local civilians.
Asserting that each of the civilian deaths at issue
was an extrajudicial killing in violation of the law of
nations under the ATS and in violation of the TVPA,
Plaintiffs contended Defendants were liable because
the AUC paramilitaries carried out the atrocities as
Defendants agents and Defendants conspired with
and aided and abetted the AUC.
Defendants moved to dismiss Plaintiffs initial
complaint on several grounds. The district court
refused to dismiss the complaint entirely; instead, it
permitted Plaintiffs to amend in order to more
carefully craft their complaint in accordance with
the courts stated findings. However, the court did
find that Plaintiffs wrongful death claims would
raise novel and complex issues of Colombian law.
The district court thus declined to exercise
supplemental jurisdiction under 28 U.S.C. 1367
over Plaintiffs wrongful death claims, regardless of
whether Plaintiffs properly alleged federal claims
under the ATS and TVPA in their amended
complaint. Plaintiffs amended complaint added a
claim for crimes against humanity under the ATS
in addition to their existing claims under the ATS
and the TVPA.

Supp. App. 5

In response, Defendants renewed their motion

to dismiss. The district court granted Defendants
motion in part, dismissing the crimes against
humanity claim on the grounds that the attacks by
the AUC were not attacks on a civilian population.
Plaintiffs then filed a second amended complaint
removing the pseudonyms and disclosing their
identities.2 The complaint identified in detail each
Plaintiff, his or her relationship to the deceased, and
the facts surrounding the death of the decedent at
the hands of the AUC.3
On September 29, 2011, Plaintiffs filed a third
amended complaint, which serves as the operative
complaint in this action, and the parties proceeded to
discovery. Shortly thereafter, the Supreme Court
listed Kiobel v. Royal Dutch Petroleum Co. a case
involving ATS claims for reargument on the
question of [w]hether and under what circumstances
the [ATS] allows courts to recognize a cause of action
for violations of the law of nations occurring within
the territory of a sovereign other than the United
States. See Kiobel v. Royal Dutch Petroleum Co.,
Plaintiff Jane Doe was revealed to be Claudia Balcero
Giraldo, the legal representative and wrongful death
beneficiary of the estate of her husband. When the second
amended complaint was filed, the case caption was restyled
Giraldo v. Drummond Company, and the district court referred
to Plaintiffs as the Balcero plaintiffs. On appeal, this case
retains its original title.
3 Plaintiffs claim they are all lawful legal representatives for
and beneficiaries of the decedents. Since a recitation of the
names, circumstances, and relationships of each individual
Plaintiff and his or her decedent is not necessary to the
disposition of the legal claims at issue, we will not recount the
specific details provided by and about the respective Plaintiffs.
2

Supp. App. 6

565 U.S. ___, ___, 132 S. Ct. 1738, 1738 (2012)

(mem.)
(internal
quotation
marks
omitted)
(calendaring the case for reargument). Defendants
moved for a stay of proceedings pending the Supreme
Courts decision, but the district court denied the
motion.
At the close of discovery, each of the
Defendants moved for summary judgment. During
the pendency of those motions, the Supreme Court
issued its decision in Kiobel, 569 U.S. ___, 133 S. Ct.
1659. After ordering and considering supplemental
briefing by the parties on the impact of Kiobel on the
instant action, the district court dismissed Plaintiffs
ATS claims against all Defendants in a series of
separate opinions and accompanying orders.
As for Plaintiffs TVPA claims, in the same
series of opinions, the district court found that the
Supreme Courts decision in Mohamad v. Palestinian
Authority, 566 U.S. ___, 132 S. Ct. 1702 (2012),
required dismissal of the claims against any
corporate entities; thus, the district court dismissed
Plaintiffs claims against Drummond Company and
Drummond Ltd. The court also granted the summary
judgment motions filed by the individual defendants,
Tracy and Jimenez, thereby dismissing Plaintiffs
remaining TVPA claims.
With all claims dismissed and the litigation at
a close, Plaintiffs moved to vacate the summary
judgment orders. Plaintiffs argued that the
judgments should be vacated to permit limited
discovery regarding actions taken by Defendants in
the United States or, in the alternative, to allow

Supp. App. 7

Plaintiffs to amend their complaint for a fourth time

to assert diversity jurisdiction and in that way
pursue their wrongful death claims under Colombian
law before the district court. The court denied
Plaintiffs motion, and this appeal ensued.
II. ALIEN TORT STATUTE CLAIMS
On appeal, we are called upon to determine
whether Plaintiffs ATS claims that U.S. citizens,
acting in part from within the United States, aided
and abetted or otherwise contributed to human
rights violations committed outside the United
States sufficiently touch and concern the
territory of the United States so that we have
jurisdiction to consider Plaintiffs claims.
The touch and concern standard is set forth
in Kiobel, wherein the Supreme Court held that ATS
claims are subject to the presumption against
extraterritoriality, a judicially created canon of
statutory interpretation that assumes U.S. law does
not apply outside of the United States. See 569 U.S.
at ___, 133 S. Ct. at 1664, 1669. Pursuant to Kiobel,
the presumption constrains federal courts exercise of
jurisdiction over ATS claims that have an
extraterritorial component unless the claims at issue
touch and concern the territory of the United States
. . . with sufficient force to displace the presumption.
See id. This courts prior interpretations of Kiobel
control our determination as to whether Plaintiffs
claims meet this standard.
Two recent decisions of this court, issued over
the span of a few months, have addressed our

Supp. App. 8

jurisdiction over ATS cases after Kiobel: Baloco v.

Drummond Co. (Baloco II)4 and Cardona v. Chiquita
Brands International, Inc.5 Both decisions impose
jurisdictional constraints that are not required by
the Courts holding in Kiobel, but they also leave
unanswered a considerable number of questions as to
this circuits interpretation and application of
Kiobels operative language.
Still, the application of our prior opinions to
this case compels a finding that, on the facts before
us, Plaintiffs claims do not touch and concern the
territory of the United States, or rather that they do
not do so with sufficient force to displace the
presumption and permit jurisdiction. For these
reasons and those set forth in greater detail below,
we are obliged to find that neither this court nor the
district court have jurisdiction over Plaintiffs claims
brought under the ATS.
A. Legal Background
Because the Supreme Courts decision in
Kiobel significantly altered the landscape of ATS
jurisprudence, a discussion of the relevant legal
background is necessary. We look first to the statute
itself before addressing the Courts decision in
Kiobel. We then consider guidance from the few
circuits that have considered similar claims postKiobel, including the two controlling decisions of this
767 F.3d 1229 (11th Cir. 2014) (appeal following remand); see
Baloco ex rel. Tapia v. Drummond Co. (Baloco I), 640 F.3d 1338,
1345 (11th Cir. 2011) (reversing dismissal of plaintiffs case and
remanding for proceedings consistent with opinion).
5 760 F.3d 1185 (11th Cir. 2014).
4

Supp. App. 9

court, which inform our interpretation of Kiobel and

direct our discussion of the ATS claims currently
before us.
(1) The Alien Tort Statute
The ATS states in its entirety: The 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.6 28 U.S.C. 1350. By its terms, the
ATS is a strictly jurisdictional statute. Sosa v.
Alvarez-Machain, 542 U.S. 692, 713, 124 S. Ct. 2739,
2755 (2004).
Due to its jurisdictional nature, the ATS does
not provide an independent cause of action; instead,
it grants jurisdiction to district courts on the
understanding that the common law [will] provide a
cause of action for [a] modest number of
international law violations.7 Id. at 724, 124 S. Ct.
at 2761; see Romero v. Drummond Co., 552 F.3d
1303, 1315 (11th Cir. 2008). Consequently, the ATS
empowers federal courts to recognize private claims
Not only is the ATS notoriously brief, but there is limited
legislative history available to assist with its interpretationit
was originally enacted in 1789 as part of the Judiciary Act that
established the then-new federal court system. See Judiciary
Act of 1789, ch. 20, 9, 1 Stat. 73, 7677 (codified as amended
at 28 U.S.C. 1350).
7 Since the ATS does not create statutory claims, it is a bit of a
misnomer to refer to ATS claims. More accurately, claims are
brought under the ATS; that is, the ATS confers jurisdiction on
the district courts over federal common law causes of action
premised on law of nations violations. ATS claims as used
herein must be read to reflect this concept.
6

Supp. App. 10

under federal common law, when those claims

sufficiently state an international law violation
with the requisite definite content and acceptance
among civilized nations. Kiobel, 569 U.S. at ___, 133
S. Ct. at 1663 (internal quotation marks omitted).
The ATS will not confer jurisdiction on federal
courts unless the requirements set forth in the
statute are met: the plaintiff must be (1) an alien,
(2) suing for a tort, which was (3) committed in
violation of international law.8 See Aldana v. Del
Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1246
(11th Cir. 2005) (per curiam). However, the explicit
statutory
requirements
are
not
the
only
requirements for jurisdiction. Some of the numerous
additional jurisdictional predicates include, for
example, whether liability on the part of the
defendant and the plaintiffs theory therefor are
cognizable. See Mastafa v. Chevron Corp., 770 F.3d
170, 17980 (2d Cir. 2014).
Here, such initial prerequisites appear to be
satisfied: Plaintiffs are citizens of Colombia bringing
a civil suit for the extrajudicial killings of their
decedents. See Romero, 552 F.3d at 1316
(recognizing that claims for extrajudicial killings are
actionable international law violations under the
ATS). Further, Plaintiffs may pursue their claims
against both corporate and individual Defendants
To be in violation of international law in the context of the
ATS, the challenged action must violate the law of nations.
The term law of nations is also used synonymously with
customary international law in this context. See Filartiga v.
Pena-Irala, 630 F.2d 876, 884 (2d Cir. 1980) (discussing sources
of customary international law in finding that the law of
nations prohibits torture).
8

Supp. App. 11

under the ATS, and those claims may be based on

direct and indirect theories of liability.9 See Cabello
v. Fernandez-Larios, 402 F.3d 1148, 1158 (11th Cir.
2005) (per curiam); Romero, 552 F.3d at 1315.
However, our inquiry does not end there. Because
aspects of Plaintiffs claims occurred outside of the
United States, we must address the jurisdictional
predicate recently set forth in Kiobel: whether the
presumption against extraterritoriality precludes
subject matter jurisdiction over Plaintiffs ATS
claims.10 See Kiobel, 569 U.S. at ___, 133 S. Ct. at
166465, 1669; Mastafa, 770 F.3d at 179.

State action may also be required for ATS claims, although we

have recognized that private defendants may be liable under
the law of nations, for some conduct, such as war crimes,
regardless of whether they acted under color of law of a foreign
nation. Romero, 552 F.3d at 1316. Here, the district court
found that any state action requirement was met in Plaintiffs
initial pleadings due to the AUCs relationship with the
Colombian government.
10 The presumption a canon of statutory interpretation
applied to discern whether an Act of Congress regulating
conduct applies abroadnormally presents a merits question,
not a question of jurisdiction. See Kiobel, 569 U.S. at ___, 133
S. Ct. at 1664 (internal quotation marks omitted). As such, it
was not readily applicable to ATS claims, since the ATS is an
entirely jurisdictional statute that simply allows federal courts
to recognize certain causes of action based on sufficiently
definite norms of international law. See id. Indeed, the ATS
does not authorize the making of substantive U.S. law or its
application abroad the very sin to which the presumption
against extraterritoriality is addressed. See Ralph G.
Steinhardt, Determining Which Human Rights Claims Touch
and Concern the United States: Justice Kennedys Filartiga, 89
Notre Dame L. Rev. 1695, 1701 (2014). Kiobel marks the first
time the Supreme Court applied the presumption to a purely
jurisdictional statute; previously, the Court applied the
presumption
only
to
substantive
statutory
regimes
9

Supp. App. 12

(2) The Supreme Courts Kiobel Decision

In Kiobel, the Court considered whether and
under what circumstances courts may recognize a
cause of action under the [ATS], for violations of the
law of nations occurring within the territory of a
sovereign other than the United States. 569 U.S. at
___, 133 S. Ct. at 1662. In a majority opinion
authored by Chief Justice John Roberts, the Court
found
that
the
presumption
against
extraterritoriality applies to claims under the ATS,
to constrain courts considering causes of action that
may be brought under the ATS. Id. at 1664.
Applying the presumption to the claim before
it, wherein foreign plaintiffs
sought
to
hold
foreign defendants liable under the ATS for
exclusively foreign conduct, the Court held that, [o]n
these facts, the presumption precluded jurisdiction.
See id. at 166264, 1669 (emphasis added)
(considering that all the relevant conduct took place
outside the United States and finding mere
corporate
presence
insufficient
to
support
jurisdiction).
Thus, the Kiobel majority opinion answered
the question before the Court in the negative,
providing only under what circumstances a court
may not recognize a cause of action under the ATS
that is, when the claim involves a foreign plaintiff
suing a foreign defendant where all relevant
conduct occurred on foreign soil (a so-called foreignimplemented by Congress, such as securities laws, labor laws,
and antidiscrimination laws. See id. at 1696, 170102.

Supp. App. 13

cubed case11). The Court left open the possibility

that courts may recognize other, non-foreign-cubed
ATS claims, since the presumption against
extraterritorial application of the ATS could be
displace[d] by claims made under the statute that
touch and concern the territory of the United States
. . . with sufficient force to displace the presumption.
See id. at 1669.
We derive three functional rules from Kiobel.
First, the presumption against extraterritoriality
applies to ATS claims. Second, in order to displace
the presumption for a claim brought under the ATS,
the claim must touch and concern the territory of the
United States with sufficient force. Third, if the
presumption is not displaced, the court does not have
jurisdiction under the ATS and cannot hear the
matter. The application of these rules to the facts in
Kiobel led to the narrow holding of the Supreme
Court: when an ATS claim is brought against foreign
defendants and all relevant conduct occurred outside
the United States, the presumption is not displaced

See Morrison v. Natl Austl. Bank Ltd., 561 U.S. 247, 283
n.11, 130 S. Ct. 2869, 2894 n.11 (2010) (Stevens, J., concurring
in the judgment) (describing foreign-cubed actions in the
context of the presumption against extraterritoriality as applied
to securities cases). The Supreme Court recently confirmed
that Kiobel precluded jurisdiction under the ATS with regard to
a similarly foreign-cubed action. See Daimler AG v. Bauman,
571 U.S. ___, ___, 134 S. Ct. 746, 750, 76263 (2014)
(considering the authority of a court in the United States to
entertain a claim brought by foreign plaintiffs against a foreign
defendant based on events occurring entirely outside the United
States and noting that Kiobel had foreclosed plaintiffs ATS
claims).
11

Supp. App. 14

by the defendants mere corporate presence within

the United States.
The Court left important questions unresolved
as to the application of these rules when claims are
brought under different circumstances, especially
with regard to what claims would displace the
presumption and permit jurisdiction under the ATS.
All three of the concurrences in Kiobel averred that
the Court clearly and intentionally left these
questions unanswered. See id. (Kennedy, J.,
concurring) ([T]he Court is careful to leave open a
number of significant questions regarding the reach
and interpretation of the [ATS].); id. at 166970
(Alito, J., concurring) (commenting that the Courts
touch and concern formulation obviously leaves
much unanswered); id. at 1673 (Breyer, J.,
concurring in the judgment) ([The Court] offers only
limited help in deciding the question presented . . . .
It leaves for another day the determination of just
when the presumption against extraterritoriality
might be overcome.).
Indeed, the Kiobel majority did not explain its
touch and concern language, nor did it define the
operative terms pertinent to this inquiry, such as
sufficient force, relevant conduct, or what more
than mere corporate presence would suffice to
permit jurisdiction. See id. at 1669 (majority
opinion). Thus, courts have been left to form their
own interpretations as to the meaning and
requirements of these standards.
(3) Interpreting Touch and Concern

Supp. App. 15

Pursuant to Kiobel, the presumption against

extraterritoriality plainly bars jurisdiction over
foreign-cubed actions brought under the ATS.
However, when an ATS claim involves a U.S.-citizen
defendant or where events underlying the claim
occur both domestically and extraterritorially, the
courts must engage in further analysis.12 Four
circuits including our own have addressed the effect
of the presumption with regard to these types of
claims, interpreting and applying the undefined
touch and concern test from Kiobel. We consider
some of the recent decisions from the Fourth, Second,
and Ninth Circuits before turning to the Eleventh, as
those decisions offer guidance in understanding our
own precedent and in answering questions that our
two decisions do not address.
(a) Fourth Circuit
In an informative opinion considering ATS
claims against a U.S. corporation based on the
alleged torture of foreign nationals detained in Iraq,
the Fourth Circuit interpreted Kiobels touch and
concern language and found that the claims before it

All plaintiffs pursuing claims under the ATS will be foreign

nationals; however, the citizenship or corporate status of the
defendant and the location or impact of relevant conduct may
provide key distinctions from Kiobel. See, e.g., Al Shimari v.
CACI Premier Tech., Inc., 758 F.3d 516, 52728 (4th Cir. 2014)
(distinguishing ATS claims from those barred by Kiobel due to
the U.S. citizenship of the defendants and domestic conduct);
Mastafa, 770 F.3d at 182 (describing Kiobel as leav[ing] open a
window for ATS actions that are based in part on
extraterritorial conduct).
12

Supp. App. 16

displaced the presumption against extraterritorial

application. See Al Shimari, 758 F.3d at 520, 529.
The Al Shimari court first noted that the
Court in Kiobel intentionally and broadly stated
that the claims, rather than the alleged tortious
conduct, must touch and concern United States
territory with sufficient force. Id. at 527 (quoting
Kiobel, 569 U.S. at ___, 133 S. Ct. at 1669). Thus, the
Courts operative language instructs lower courts to
apply a fact-based analysis to determine whether
ATS claims with a close connection to United States
territory displace the presumption. Id. at 52728
([I]t is not sufficient merely to say that because the
actual injuries were inflicted abroad, the claims do
not touch and concern United States territory.); see
Blacks Law Dictionary 281 (9th ed. 2009) (a claim
is the aggregate of operative facts giving rise to a
right enforceable by a court). Under this
interpretation, courts must consider all the facts
that give rise to ATS claims, including the parties
identities and their relationship to the causes of
action. Al Shimari, 758 F.3d at 527.
Applying this fact-based analysis to the ATS
claims before it, the Fourth Circuit found several
factors relevant, including the defendants status as
a U.S. corporation; the U.S. citizenship of the
defendants employees that allegedly committed acts
of torture; and the U.S. connections involved in the
defendant corporation and its employees contracting
with and obtaining security clearances from the U.S.
government. See id. at 53031. The court also noted
allegations that the defendant had aided and abetted
acts of torture through conduct that took place

Supp. App. 17

within the United States; corporate managers

located in the United States were aware of reports of
misconduct and implicitly, if not expressly,
encouraged it. Id. at 531 (internal quotation marks
omitted). Finally, the court considered the expressed
intent of Congress, through enactment of the TVPA
and 18 U.S.C. 2340A, to provide aliens access to
United States courts and to hold citizens of the
United States accountable for acts of torture
committed abroad. Id.
Weighing all of these factors, the Al Shimari
court unanimously held that the plaintiffs claims
touched and concerned the territory of the United
States with sufficient force to displace the
presumption against extraterritorial application of
the ATS. See id. at 530. Thus, the ATS conferred
jurisdiction. See id. at 529.
(b) Second Circuit
The Second Circuit offers a somewhat
different approach to interpreting Kiobels touch and
concern language. The court in Mastafa determined
that domestic contacts are key: An evaluation of
the presumptions application to a particular case is
essentially an inquiry into whether the domestic
contacts are sufficient to avoid triggering the
presumption at all. Mastafa, 770 F.3d at 182.
Looking to the complaint before it, the court
found allegations of some contact between the
injuries alleged [that occurred extraterritorially] and
the territory of the United States. Id. at 18283
(internal quotation marks omitted).
Thus, the

Supp. App. 18

presumption against extraterritoriality was triggered

but not dispositive, and further jurisdictional inquiry
was required. See id. at 183.
To determine the requisite inquiry as well as
which facts were relevant, the Second Circuit turned
to Morrison, 561 U.S. 247, 130 S. Ct. 2869, an earlier
Supreme Court case applying the presumption
against extraterritoriality to cases arising under the
Securities Exchange Act.13 In Morrison, the Court set
forth the focus test, which requires courts to
determine the focus of the statute it is considering;
the focus of congressional concern or the conduct
that the statute seeks to regulate must occur in
the territory of the United States to rebut the
presumption.14
Applying the focus test, the Second Circuit
found that the focus of jurisdictional inquiries under
the ATS is on conduct and on the location of that
conduct; specifically, the conduct alleged to violate
the law of nations or, as relevant to the case before
the Mastafa court, the conduct alleged to aid and

See Morrison, 561 U.S. at 255, 130 S. Ct. at 287778.

Although Morrison involved a substantive statute, whereas the
ATS is jurisdictional, the Second Circuit found it could be
instructive and relevant to the jurisdictional inquiry. See
Mastafa, 770 F.3d at 183 n.9.
14 See Morrison, 561 U.S. at 26667, 130 S. Ct. at 2884. By way
of example, in Morrison, the focus of the statute was purchases
and sales of securities. See id. at 266, 130 S. Ct. at 2884. Thus,
that specific conduct had to take place in the United States.
When the purchase or sale of the security occurred abroad, the
presumption against extraterritorial application prevented the
exercise of jurisdiction.
13

Supp. App. 19

abet the violation. Mastafa, 770 F.3d at 185, 195. To

displace the presumption, then, there must be:
(1) conduct of the defendant that touche[s]
and concern[s] the United States with
sufficient force to displace the presumption
against extraterritoriality, and (2) that the
same conduct, upon preliminary examination,
states a claim for a violation of the law of
nations or aiding and abetting anothers
violation of the law of nations.
Id. at 187.
Thus, the inquiry depended on alleged
conduct by anyone U.S. citizen or not that took
place in the United States and aided and abetted a
violation of the law of nations. Id. at 189. The court
noted that the plaintiffs had alleged specific,
domestic conduct, including the defendants
purchasing and financing of oil transactions from
within the United States and the facilitation of
illegal payments and financing arrangements
through a U.S.-based bank account. Id. at 195.
Given these specific, non-conclusory allegations of
domestic conduct, the Mastafa court found that the
plaintiffs claims appeared to touch and concern the
United States with sufficient force to displace the
presumption and satisfy the first prong of the
courts jurisdictional analysis. See id.
However, although the domestic conduct
displaced the presumption, the plaintiffs claims
failed the second prong of the courts jurisdictional
inquiry; the plaintiffs failed to plausibly plead that

Supp. App. 20

the defendants aiding and abetting of the

international law violations met the required mens
rea standard of the Second Circuit. See id. at 19396
(allegations of the requisite mens rea standard were
made only in conclusory terms). Consequently, the
Mastafa court concluded it could not exercise
jurisdiction over the plaintiffs claims. See id. at
19596.
(c) Ninth Circuit
Two opinions from the Ninth Circuit are also
instructive. In contrast to the Second Circuit, the
Ninth Circuit determined that, although Morrison
may be informative precedent, the Morrison focus
test and the Kiobel touch and concern test involve
distinct analyses. See Doe v. Nestle USA, Inc., 766
F.3d 1013, 1028 (9th Cir. 2014) ([S]ince the focus
test turns on discerning Congresss intent when
passing a statute, it cannot sensibly be applied to
ATS claims, which are common law claims based on
international legal norms.).15 The Nestle court
declined to apply and refine Kiobels amorphous
touch and concern test given the limited record
before it. Id. at 102829 (granting plaintiffs leave to
amend their pleadings to allege that some of the
activity underlying their ATS claim took place in the
United States).
The Nestle court discussed several bases for its conclusion
that the opinion in Kiobel [] did not incorporate Morrisons
focus test, including that the Kiobel Court chose to use the
phrase touch and concern rather than the term focus when
articulating the legal standard it did adopt and that the
concurring opinions indicated that the majoritys touch and
concern language set forth a new test. See id. at 102728.
15

Supp. App. 21

The Ninth Circuit then analyzed the touch and

concern test in Mujica v. AirScan Inc., 771 F.3d 580
(9th Cir. 2014). In Mujica, the plaintiffs contended
that their claims displaced the presumption because
the defendants were U.S. corporations and decisions
furthering the conspiracy between the defendants
and the perpetrators occurred in the United States.
See id. at 591. However, the court noted that the only
statement even alluding to any domestic conduct was
found in the plaintiffs reply brief, filed after Kiobel.
See id. at 592. In that statement, the plaintiffs only
speculate[d] that some of [the] conduct . . . could
have occurred in the United States. Id. (emphasis
added). Although Kiobel did not hold that plaintiffs
may never bring ATS claims based on
extraterritorial conduct, the Ninth Circuit reasoned
that permitting the plaintiffs claims to proceed on a
speculative assertion of domestic conduct would run
counter to Kiobels requirement that claims must
touch and concern with sufficient force. Id. at 591
92.
The court also determined that, given the
absence of any non-speculative allegations of
domestic conduct, the defendants U.S. citizenship
alone was insufficient to displace the presumption.
See id. at 594. In so holding, the court was careful to
note that citizenship may be one factor that, in
conjunction with other factors, can establish a
sufficient connection between an ATS claim and the
territory of the United States to satisfy Kiobel. Id. at
594 & n.9 (We do not contend that this factor is
irrelevant to the Kiobel inquiry; we merely hold that
it is not dispositive of that inquiry.). The Mujica

Supp. App. 22

court thus concluded that the plaintiffs claims did

not displace the presumption. See id. at 596.
(d) Eleventh Circuit
Having considered some of the approaches to
interpreting and applying Kiobels operative
language, we turn now to the two opinions of this
circuit that address ATS claims after Kiobel.16
In Cardona, the plaintiffs claimed that a U.S.
company, from within the United States, made
decisions to collaborate with and fund the
paramilitary
organizations
that
committed
extrajudicial killings and war crimes in Colombia.
760 F.3d at 1194 (Martin, J., dissenting).17 Although
the Cardona majority quoted Kiobels touch and
concern language, it stopped short of fully
interpreting the test, instead noting that the case in
Kiobel was in some ways parallel to the one before
the court in Cardona. See id. at 1189, 1191 (majority
opinion).
Thus, without further analysis, Cardona found
that, like Kiobel, [a]ll the relevant conduct in [this]
case took place outside the United States, and the
Prior to Kiobel, we did not apply the presumption against
extraterritoriality to claims brought under the ATS. Thus, our
pre-Kiobel case law considering the ATS has little relevance to
our interpretation of the presumption here.
16

We deduce this from the dissenting opinion, as the Cardona

majority did not discuss the allegations in the complaint or the
plaintiffs claims with any specificity and made no mention of
these particular allegations.
17

Supp. App. 23

plaintiffs could not anchor ATS jurisdiction in the

nature of the defendants as United States
corporations
to
make
the
statute
apply
extraterritorially. See id. at 1189. Noting the absence
of an allegation that any torture occurred on U.S.
territory, or that any other act constituting a tort in
terms of the ATS touched or concerned the territory
of the United States with any force, the court in
Cardona concluded it did not have jurisdiction
because [t]here is no other statute and the ATS
does not apply extraterritorially. See id. at 1189
91.
The remainder of the majority opinion is
couched as responding to the dissent, but it primarily
discusses whether torture is cognizable under the
ATS, implying that jurisdiction may be limited by
the plaintiffs cause of action. See id. at 1190 (It is
not nearly so clear, as our dissenting colleague
believes, that acts described as torture come within
the jurisdiction created by the statute . . . .). The
majority insinuated that torture may not be
recognized as a tort in violation of the law of nations,
referring to such a finding as one that would create
a cause of action within the ATS jurisdiction against
the caution of Sosa and would expand ATS
jurisdiction.18 See id. at 1191, 1192.
The majority opinion did not acknowledge that this circuit
already recognizes in cases after Sosa that both torture
and extrajudicial killing are cognizable violations of the law of
nations under the ATS. See, e.g., Sinaltrainal v. Coca-Cola Co.,
578 F.3d 1252, 126566 & n.15 (11th Cir. 2009), abrogated in
part on other grounds by Mohamad, 566 U.S. ___, 132 S. Ct.
1702; Romero, 552 F.3d at 1316; Aldana, 416 F.3d at 1247. The
dissent remarked on the majoritys observation, noting only
that it did not read the majority opinion as casting doubt on
18

Supp. App. 24

Dissenting from the majority opinion, Judge

Martin considered the plaintiffs allegations that the
defendant violated international law from within
the United States by offering substantial assistance
to a campaign of violence abroad. Id. at 1195
(Martin, J., dissenting). Plaintiffs claims, then, were
not for conduct or actions that took place on foreign
soil, but rather for the defendants domestic conduct,
which
included
reviewing,
approving,
and
concealing a scheme of payments and weapons
shipments to Colombian terrorist organizations, all
from their corporate offices in the territory of the
United States. Id. at 1192, 119495. Given that the
plaintiffs s[ought] relief in a United States court for
violations of international law committed by United
States citizens while on United States soil, the
dissent would have found that the claims touch[ed]
and concern[ed] the territory of the United States
with great force, sufficient to displace the
presumption. Id. at 1195 (internal quotation marks
omitted).
The majority opinion in Cardona offers only
limited guidance as to the interpretation of Kiobel
and the application of the presumption against
extraterritoriality. However, since the court held
that the ATS did not confer jurisdiction, the majority
must have concluded that the plaintiffs allegations
in the case before it did not touch and concern the

this Courts post-Sosa jurisprudence holding that torture is a

proper claim that may be brought under the ATS. Cardona,
760 F.3d at 1193 n.3 (Martin, J., dissenting).

Supp. App. 25

territory of the United States with sufficient force to

displace the presumption.
Another panel of this court considered the
impact of Kiobel in Baloco II, 767 F.3d 1229. The
claims of the plaintiffs in Baloco II and those of
Plaintiffs before us now are premised on similar
allegations that the defendants made decisions
within the United States to fund, aid and abet, and
otherwise support the perpetrators of extrajudicial
killings in Colombia.19 See id. at 1233. As with
Cardona, the opinion in Baloco II quoted the touch
and concern test from Kiobel, but Baloco II also
offered an interpretation of Kiobels operative
language. In so doing, Baloco II looked to the
guidance in Morrison, 561 U.S. 247, 130 S. Ct. 2869,
including the focus test therein, and ultimately set
forth its own fact-based approach incorporating both
the touch and concern test and the focus test. See
Baloco II, 767 F.3d at 123637.
Baloco IIs dispositive analysis amalgamates
Kiobels standards with Morrisons focus test,
considering whether the claim and relevant
conduct are sufficiently focused in the United
States to warrant displacement and permit

In Baloco II, the defendants are the same as in this case

(Drummond Company, Drummond Ltd., Jimenez, and Tracy).
The Baloco II plaintiffs are relatives of union leaders at
Drummond Companys coalmine who were killed by the AUC,
whereas Plaintiffs in the present case are relatives and
representatives of additional individuals killed by the AUC
around Drummond Companys mining operations and rail line.
19

Supp. App. 26

jurisdiction.20 See id. at 123839. Thus, Baloco II

interpreted Kiobels touch and concern test to require
some relevant conduct to occur in the United States;
if all relevant conduct occurs entirely outside of the
United States, the claim will be barred and no
further jurisdictional inquiry will be required.21
Applying these standards, the Baloco II panel
determined that, if the relevant conduct inquiry
extend[ed] to the place of decision-makingas
opposed to the site of the actual extrajudicial
killing, the plaintiffs would need to allege a
minimum factual predicate warranting the
extraterritorial application of the ATS. Id. at 1236.
There must be some conduct in the United States
To be clear, the Morrison focus test refers to the focus of the
statute (that is, the conduct regulated therein or purposes
thereof), not the focus of the claim or that of the conduct.
21 In this way, Baloco IIs instruction comports with Kiobel and
Morrison. The rule from Kiobel is not claims are barred where
relevant conduct occurred abroad, but rather claims are
barred where all relevant conduct occurred abroad. See Kiobel,
569 U.S. at ___, 133 S. Ct. at 1669; see also Daimler AG, 571
U.S. at ___, 134 S. Ct. at 750, 763 (Kiobel foreclosed the
authority of a court in the United States to entertain a claim
brought by foreign plaintiffs against a foreign defendant based
on events occurring entirely outside the United States.
(emphasis added)). Comparably, in Morrison, the conduct that
must take place in the United States to rebut the presumption
is the conduct that was the focus of congressional concern. See
Mastafa, 770 F.3d at 185, 195. While Baloco II did not
determine what relevant conduct is the focus of the
jurisdictional inquiry under the ATS when it incorporated
Morrisons focus test, the Second Circuit found that the focus
for ATS purposes is on the conduct alleged to violate the law of
nations or the conduct alleged to aid and abet the violation.
See id.
20

Supp. App. 27

that is either directed at the underlying violation

(the extrajudicial killing) or that indicates an
express quid pro quo understanding that the
defendants would aid and abet the perpetrators in
exchange for the law of nations violation. See id.
Further, the relevant conduct must be alleged to a
degree necessary to overcome the presumption. Id.
at 1239. Absent the sufficient factual predicate, the
presumption will not be overcome and the claims will
be dismissed.
This factual predicate was not met in Baloco
II; the plaintiffs allegations of the defendants mere
consent from within the United States to support a
terrorist organization did not suffice. See id. at 1236.
Nor were there allegations of a purported express
agreement between the defendants and the
perpetrators to commit the underlying law of nations
violations on the defendants behalf. Id. (finding no
allegations that the defendants would finance AUC
operations in exchange for the AUC carrying out the
killings). The court determined that the underlying
conduct (the extrajudicial killings) might have
touch[ed] and concern[ed] the territory of the
United States (because of [the defendants] alleged
involvement). See id. at 1238. However, the courts
consideration of all facts led it to conclude that the
plaintiffs claims did not do so with sufficient force to
displace the presumption against extraterritorial
application. See id.
Baloco II thus makes clear that the
presumption against extraterritoriality may be

Supp. App. 28

displaced or overcome to permit jurisdiction.22 See

id. at 123638. Addressing whether displacement
was warranted, the court considered the facts of the
case before it and whether a minimum factual
predicate had been met with regard to the alleged
aiding and abetting conduct within the United
States. See id. Based on those facts and after
weighing the same, the court in Baloco II concluded
that displacement was not warranted, and the
presumption against extraterritoriality precluded
jurisdiction. See id. at 1237 (noting that, when a
claim brought under the ATS for violation of the law
of nations fails to overcome the presumption, the
exercise of jurisdiction is improper); id. at 1238
(determining that the facts in the case before it
weigh[ed] against a finding that [p]laintiffs claims
Reading our precedent in tandem and noting that Baloco II
cited Cardona in its conclusion, we construe Cardonas
assertion that the ATS does not apply extraterritorially to
mean that the presumption against extraterritorial application
was not sufficiently displaced in that case. See Cardona, 760
F.3d at 1191 (acknowledging the possibility of an exception to
the presumption against extraterritoriality). We cannot read
Cardonas statement as a broad rule that all ATS claims
involving some extraterritorial aspects are barred; to do so
would render moot the statements by the Supreme Court as
well as this court regarding relevant conduct and
displacement. See Kiobel, 569 U.S. at ___, 133 S. Ct. at 1669;
Baloco II, 767 F.3d at 123738; see also Kiobel, 569 U.S. at ___,
133 S. Ct. at 166569 (referring to overcoming, rebutting, or
displacing the presumption); id. at 1673 (Breyer, J.,
concurring in the judgment) (noting that the majority opinion
makes clear that a statutory claim might sometimes touch and
concern the territory of the United States with sufficient force
to displace the presumption (internal quotation marks and
alteration omitted)). Thus, we find that Cardona, in accord with
Kiobel and Baloco II, holds that the ATS does not apply
extraterritorially when it has not been displaced.
22

Supp. App. 29

touch and concern the territory of the United States

with sufficient force to displace the presumption).
The court summarized its holding and reasons
therefor with the following: [p]laintiffs claims
[we]re not focused within the United States. See id.
at 1238 (emphasis added).
B. Legal Framework
In this crowded legal landscape, we must
determine what framework applies to ATS claims
when aspects of the claims occur both domestically
and extraterritorially.23 Our precedent directs this
navigation, while persuasive authority from the
other courts guides us when our previous decisions
do not provide clear directions. We find that actions
under the ATS with an extraterritorial component
must touch and concern the territory of the United
States with sufficient force to displace the
presumption in order for jurisdiction to be proper.
Displacement of the presumption will be warranted
if the claims have a U.S. focus and adequate relevant
conduct occurs within the United States.
Turning to how we apply this standard, we
look to the ATS claims as alleged in order to
To reiterate, pursuant to Kiobel and our prior interpretations
thereof, if no relevant aspects of an ATS claim occur within the
United States, the presumption against extraterritoriality
prevents jurisdiction; however, if some relevant aspects of the
claim occur within the United States, we must determine
whether the presumption is displaced. In a third scenario
wherein all relevant aspects occur within the United States, the
presumption against extraterritoriality would obviously not
applythere would be no extraterritorial component to the
claim.
23

Supp. App. 30

determine whether the action is focused in the

United States, in addition to what aspects of the
claims and conduct are relevant to our inquiry. This
is a fact-intensive inquiry, requiring us to look
closely at the allegations and evidence in the case
before us. See Kiobel, 569 U.S. at ___, 133 S. Ct. at
1669 (noting that on these facts, all the relevant
conduct took place outside the United States);
Baloco II, 767 F.3d at 123536, 1238 (considering
whether the plaintiffs ATS claims could proceed
under the facts of this case and holding based on
consideration of all facts); accord Al Shimari, 758
F.3d at 527.
In weighing the pertinent facts, the site of the
conduct alleged is relevant and carries significant
weight. Accordingly, our 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. See Mastafa, 770
F.3d at 185, 195; see also Cabello, 402 F.3d at 1157
58 (noting that where a defendant has been found
directly or secondarily responsible for acts of torture
or extrajudicial killing, the acts are in violation of the
law of nations within the meaning of the . . . [ATS]).
When the claim is for secondary responsibility, we
must also consider the location of any underlying
conduct, such as where the actual injuries were
inflicted.24 See Baloco II, 767 F.3d at 1236, 123839;
Cardona, 760 F.3d at 1189, 1191.
This factor is weighty but not dispositive to our jurisdictional
determination. Although the other factors were insufficient to
warrant
displacement
of
the
presumption
against
24

Supp. App. 31

Further, the domestic conduct alleged must

meet a minimum factual predicate to warrant the
extraterritorial application of the ATS. See Baloco II,
767 F.3d at 1236; accord Mujica, 771 F.3d at 592.
Thus, we must consider whether the claims are
focused within the United States and to what extent
that is, whether the plaintiffs have proffered
allegations and evidence to the degree necessary to

extraterritoriality in our earlier decisions, we decline to

construe our precedent as finding that facts other than the
extraterritorial or domestic location of the underlying conduct
are irrelevant. Not only would such a construction diverge from
the other circuit courts to consider this question, but also it
would be an illogical reading for the presumption generally and
the ATS specifically.
For instance, if the defendant and the plaintiff are both
foreign nationals and all of the harmful effects of the conduct
impact a foreign country, and only limited conduct underlying
the claim occurred domestically, we would not assume that the
ATS automatically confers jurisdiction, permitting us to hale
the foreign defendant into U.S. courts and hold the defendant
civilly liable for all damages, including those on foreign soil. To
do so could result in the type of impermissible interference with
foreign
sovereigns
that
the
presumption
against
extraterritoriality prohibits. Such a construction would also
prevent jurisdiction even if a U.S. defendant performed key
conduct within the United States (e.g., assembling explosive
devices) and then provided those weapons to a terrorist
organization for use within another country with catastrophic
consequences. Thus, it would reach too far to find that the only
relevant factor is where the conduct occurred, particularly the
underlying conduct. See, e.g., Al Shimari, 758 F.3d at 528 ([I]t
is not sufficient merely to say that because the actual injuries
were inflicted abroad, the claims do not touch and concern
United States territory; rather, a more nuanced analysis is
required to determine whether the presumption has been
displaced.).

Supp. App. 32

warrant displacing the presumption. See Baloco II,

767 F.3d at 1239.
C. Discussion
We must now ascertain whether the above
requirements were met by Plaintiffs claims on
appeal. Under Kiobel, the inquiry is whether a
federal court has jurisdiction to consider claims
brought under the ATS. The district court below
interpreted Kiobel to foreclose Plaintiffs remaining
ATS claims and thus dismissed the claims on
summary judgment.25 We review de novo questions
of subject matter jurisdiction and grants of summary
judgment. See Romero, 552 F.3d at 1313.
Here, Plaintiffs brought suit under the ATS,
claiming that Defendants, from within the United
States, aided and abetted and conspired with the
AUC to carry out extrajudicial killings and war
crimes in Colombia. Since Plaintiffs claims as
alleged involve both domestic and extraterritorial
conduct, the presumption against extraterritoriality
applies and will prevent jurisdiction unless it is
displaced. Thus, we must address whether Plaintiffs
claims touch and concern the territory of the United
States and are focused therein. Even if their claims
touch and concern the United States, that alone will
be insufficient to permit jurisdiction. We must then
Defendants summary judgment motions were pending before
the district court when the Supreme Court issued its opinion in
Kiobel, and the district court rendered its decisions granting
summary judgment after considering supplemental briefing
from the parties on Kiobel.
25

Supp. App. 33

determine whether Plaintiffs claims do so to the

degree necessary; that is, whether the claims act
with sufficient force to displace the presumption.
Plaintiffs aver that there are three distinct
ways in which their claims are focused within and
touch and concern the United States with sufficient
force to displace the presumption: (1) Defendants
here, unlike the Kiobel defendants, are U.S.
corporations and citizens; (2) there are strong U.S.
interests because Defendants provided material
support to a U.S.-designated terrorist organization;
and (3) key conduct occurred in the United States,
including Defendants decisions to conspire with and
aid and abet the AUCs commission of extrajudicial
killings and war crimes and agreement to fund the
AUC. We address each in turn.
(1) U.S. Citizenship
Plaintiffs argue that their case is distinct from
Kiobel because Drummond Company and Drummond
Ltd. are American corporations and Tracy is a U.S.
citizen. Further, the corporate entities here maintain
more than mere corporate presence in the territory
of the United States; they also are incorporated in a
state within the territory of the United States and
their principal place of business is located within the
United States. Cf. Kiobel, 569 U.S. at ___, 133 S. Ct.
1669 (noting that mere corporate presence does not
displace the presumption).

Supp. App. 34

We must first address whether this factor is

relevant to our jurisdictional inquiry.26 The Supreme
Court did not exclude the significance of U.S.
citizenship, as Kiobel did not concern U.S. citizens
nor did the opinion directly address the same.
Instead, Kiobel implicitly supports that citizenship or
corporate status may be relevant to whether a claim
touches and concerns the territory of the United
States, given that, after it set forth the test, it
determined that mere corporate presence was
insufficient.27 See id.
The other circuits to consider this question have varied. The
Fourth and the Ninth Circuits consider U.S. citizenship
relevant to, if not dispositive of, the jurisdictional
determination; the Second Circuit finds it irrelevant. Compare
Al Shimari, 758 F.3d at 530 (concluding that the presumption
against extraterritorial application was displaced in part
because of the defendant corporate entitys status as a U.S.
corporation and the U.S. citizenship of the defendant
employees); Mujica, 771 F.3d at 594 (opining that a defendants
U.S. citizenship or corporate status may be relevant in
conjunction with other factors toward establishing a sufficient
connection between an ATS claim and the territory of the
United States); with Mastafa, 770 F.3d at 189 (disagreeing
with the contention that a defendants U.S. citizenship has any
relevance to the jurisdictional analysis, because the crucial
inquiry is whether alleged conduct by anyoneU.S. citizen or
not . . . took place in the United States and aided and abetted
a violation of the law of nations).
27 Interestingly, to the extent the term touch and concern has
been used in the jurisdictional context before, it relates to a
distinction in the analysis of issues concerning personal
jurisdiction. In the personal jurisdiction setting, the term is
used to note the difference between (1) general, all purpose
adjudicatory authority to entertain a suit against a defendant
without regard to the claims relationship vel non to the
defendants forum-linked activity, and (2) specific jurisdiction to
entertain controversies based on acts of a defendant that touch
and concern the forum. Steinberg v. Intl Criminal Police Org.,
26

Supp. App. 35

Further, while the defendants U.S. citizenship

was not dispositive in either of our post-Kiobel cases,
we have not ruled out consideration of this factor
altogether. In Baloco II, the court factored into its
analysis the nationality of the defendants, noting
that the case before it was factually distinct from
Kiobel since Kiobel did not involve a corporate
national of the United States or any conduct of the
defendants within the United States. See Baloco II,
767 F.3d at 123637.
Baloco II determined, however, that a
defendants U.S. citizenship is not sufficient to
displace the presumption, as this factor alone does
not carry the significant weight necessary to
warrant the extraterritorial application of the ATS
to situations in which the alleged relevant conduct
occurred abroad. See id. at 1236 & n.6 (noting
without holding that the Second Circuit has held
that the rule of law applied in Kiobel does not turn
on a defendants citizenship (emphasis added)).
Similarly, while Cardona held that plaintiffs could
not simply anchor ATS jurisdiction in the nature of
the defendants as United States corporations, it did
not jettison this factors usefulness entirely. See
672 F.2d 927, 928 (D.C. Cir. 1981) (emphasis added). The latter
category encompass[es] claims arising from forum-linked acts
or consequences. Id. at 929. Given that subject matter
jurisdiction is a distinct inquiry, we do not place significant
emphasis on this point other than to note that the touch and
concern language used by the Supreme Court in applying the
presumption against extraterritoriality to a jurisdictional
statute for the first time may have some parallels in a different
jurisdictional doctrine.

Supp. App. 36

Cardona, 760 F.3d at 1189. We find that the

citizenship or corporate status of the defendants can
guide us in our navigation of the touch and concern
inquiry even though it does not firmly secure our
jurisdiction.
Thus, in determining whether a claim
sufficiently touches and concerns the territory of the
United States to confer jurisdiction to U.S. courts,
the citizenship or corporate status of the defendant is
relevant. If the defendants are U.S. citizens, some of
the foreign policy concerns that the presumption
against extraterritorial application is intended to
reduce may be assuaged or inapplicable, since we
would not be haling foreign nationals into U.S. courts
to defend themselves.28
Additionally, the acts of U.S. citizens may
impact the United States, whether their actions
occur extraterritorially or within the United States,
particularly if those actions include international law
violations. See, e.g., Al Shimari, 758 F.3d at 53031
See Kiobel, 569 U.S. at ___, 133 S. Ct. at 1669 (noting that
the presumption guards against our courts triggering [the]
serious foreign policy consequences that could be raised if
other nations, also applying the law of nations, could hale our
citizens into their courts for alleged violations of the law of
nations occurring in the United States, or anywhere else in the
world); Al Shimari, 758 F.3d at 530 (concluding that the case
did not present any potential problems associated with
bringing foreign nationals into United States courts to answer
for conduct committed abroad, given that the defendants are
United States citizens); accord Sexual Minorities Uganda v.
Lively, 960 F. Supp. 2d 304, 32224 (D. Mass. 2013) (holding
that Kiobel did not bar ATS claims against an American citizen,
in part because [t]his is not a case where a foreign national is
being hailed [sic] into an unfamiliar court to defend himself).
28

Supp. App. 37

(considering the expressed intent of Congress . . . to

provide aliens access to United States courts and to
hold citizens of the United States accountable for
acts of torture committed abroad); cf. F. Hoffmann
La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 159,
165, 124 S. Ct. 2359, 2363, 2367 (2004) (noting that
Congress may impose liability for extraterritorial
conduct that has adverse effects within the United
States and may do so with even greater leeway
when it seeks to control . . . the actions of American
companies).29
Here, Plaintiffs claims potentially touch and
concern the territory of the United States; they are
brought against U.S. citizens and entities that reside
in and conduct business within the United States,
and Plaintiffs allege that those same U.S. citizens
aided and abetted extrajudicial killings and war
crimes in violation of the law of nations. Although
the U.S. citizenship of Defendants is relevant to our
inquiry, this factor is insufficient to permit
jurisdiction on its own. See Baloco II, 767 F.3d at
1236; accord Mujica, 771 F.3d at 594 & n.9
(contending that U.S. citizenship or corporate status
alone is not dispositive); see also Al Shimari, 758
F.3d at 53031 (considering the defendants U.S.
citizenship in addition to other factors). Thus, we
must consider it in conjunction with any other
relevant factors; further analysis is required.
For further discussion of authorities supporting the relevance
of U.S. citizenship in a jurisdictional inquiry, specifically with
regard to extraterritorial ATS claims against U.S. citizens, see
Doug Cassel, Suing Americans for Human Rights Torts
Overseas: The Supreme Court Leaves the Door Open, 89 Notre
Dame L. Rev. 1773 (2014).
29

Supp. App. 38

(2) U.S. Interests

Plaintiffs also contend that important U.S.
interests are triggered by the nature of Defendants
conduct: funding a U.S.-designated terrorist
organization. Claims involving U.S. entities and
persons funding a U.S.-designated terrorist
organization may have a U.S. focus, as required by
our precedent and distinct from the claims brought
in Kiobel.30 Thus, this factor is relevant.
Here, the U.S. government designated the
AUC as a Foreign Terrorist Organization (FTO) in
2001, which means it considered the AUC an
organization engaging in terrorist activity that
threatens the national security of the United States.
See 8 U.S.C. 1189(a)(1). This designation barred
any U.S. person or entity from knowingly providing
material support or resources to the AUC, or
attempting or conspiring to do so. See 18 U.S.C.
2339B. Plaintiffs allege that Defendants continued
to make payments to the AUC after the AUC was
designated as an FTO, even though Defendants knew
of its FTO designation. Plaintiffs thus aver that their
claims have a key U.S. component, since Defendants
purported support of the AUC has been recognized
by the U.S. government as counter to U.S. interests.
See, e.g., Mwani v. Laden, 947 F. Supp. 2d 1, 5 (D.D.C. 2013)
(finding that the presumption had been displaced because the
underlying eventsan attack on the United States Embassy in
a foreign countrywere tied much more closely to our national
interests than the mere corporate presence connection in
Kiobel, particularly given the[a]mple evidence that the events
were directed at the United States government, with the
intention of harming this country and its citizens).
30

Supp. App. 39

Turning to whether this factor is sufficient to

permit jurisdiction as alleged here, we look no
further than our precedent. Allegations of U.S.
entities supporting terrorist organizations were
before this court in both Baloco II and Cardona. In
Cardona, the plaintiffs alleged that the defendants
participated in a campaign of torture and murder in
Colombia by reviewing, approving, and concealing a
scheme of payments and weapons shipments to
Colombian terrorist organizations, all from their
corporate offices in the territory of the United
States. See 760 F.3d at 1192 (Martin, J., dissenting).
The majority must not have considered this factor
dispositive, given that it made no reference to this
allegation in holding that the presumption was not
displaced. It is not clear, however, whether or to
what extent the majority considered any terrorist
organization designation by the U.S. government of
the Colombian groups receiving support from the
U.S.-based defendants.
In Baloco II, the plaintiffs proffered nearly the
same allegations and arguments with regard to this
factor as did Plaintiffs in this case.31 While we did
not explicitly discuss the AUCs designation by the
United States as a terrorist organization, we
determined the plaintiffs general allegations of
agreement with and support of the AUC did not
The court ordered the parties in Baloco II to brief the impact
of Kiobel on the case. In response, the plaintiffs there similarly
argued that the defendants conduct involving payments to the
AUC, a designated terrorist organization, violated U.S. national
security interests. See Plaintiffs-Appellants Response Letter
Brief at 67, Baloco II, 767 F.3d 1229 (No. 12-15268).
31

Supp. App. 40

warrant displacement. See Baloco II, 767 F.3d at

1233, 1236, 123839. After having considered the
argument that the defendants payments to a U.S.designated terrorist organization violated U.S.
interests, Baloco II still found that the plaintiffs
claims were not sufficient to confer jurisdiction. See
id. at 123839.
Thus, although the U.S. interests implicated
by Defendants alleged support of a U.S.-designated
terrorist organization constitute a relevant factor, we
must conclude that, on the facts before us, this factor
also does not strike with sufficient force to displace
the presumption and permit jurisdiction. See id. at
1236.
(3) U.S. Conduct
Plaintiffs have also alleged that U.S.-based
conduct distinguishes their
claims from those of the plaintiffs in Kiobel. In
Kiobel, all relevant conduct occurred outside the
United States, and the Court limited its holding to
those facts. See 569 U.S. at ___, 133 S. Ct. at 1669.
Plaintiffs case, as with the cases before the court in
Cardona and Baloco II, requires us to determine
whether the presumption is displaced when some
relevant conduct occurs domestically. This inquiry is
key. While the previous factors are relevant to
determining whether the claims touch and concern
the United States and have a U.S. focus, our
precedent indicates that the sufficiency question
whether the claims do so with sufficient force or to
the degree necessary to warrant displacement

Supp. App. 41

will only be answered in the affirmative if enough

relevant conduct occurred within the United States.
In Baloco II, we [a]ssum[ed], without
deciding, that the relevant conduct inquiry extends
to the place of decision-making as opposed to the
site of the actual extrajudicial killing. 767 F.3d at
1236. We hold now, in accord with the other circuit
courts of appeals to consider this question, that the
jurisdictional inquiry requires looking to the
plaintiffs specific claim to determine what contacts
with or connections to the United States are
relevant; thus, the inquiry may indeed extend to the
place of decision-making. See Mastafa, 770 F.3d at
18283, 185, 195 (allegations of conduct such as
purchasing and financing from within the United
States were relevant to whether the aiding and
abetting claim touched and concerned the territory of
the United States); Al Shimari, 758 F.3d at 53031
(allegations that defendants approved, encouraged,
and then attempted to cover up the extraterritorial
misconduct from within the United States were
relevant to whether plaintiffs claims touched and
concerned the United States); Mujica, 771 F.3d at
59091 (allegations that decisions furthering the
conspiracy between defendants and perpetrators
occurred in the United States were relevant to the
jurisdictional inquiry although too conclusory to be
sufficient).
Our precedent makes clear that claims based
on aiding and abetting and conspiracy liability are
cognizable under the ATS. See, e.g., Romero, 552
F.3d at 1315; Aldana, 416 F.3d at 1248; Cabello, 402
F.3d at 1157. Thus, when considering claims that the

Supp. App. 42

defendants aided and abetted or conspired with the

perpetrators who committed the underlying
violation, the domestic or extraterritorial location of
all conduct in support of those claims is relevant to
the jurisdictional inquiry. See Mastafa, 770 F.3d at
18283, 187; Al Shimari, 758 F.3d at 52829. And
our recent decisions dictate that the claims will only
displace the presumption against extraterritoriality
if enough of the relevant conduct occurs domestically
and if the allegations of domestic conduct are
supported by a minimum factual predicate. See
Baloco II, 767 F.3d at 123839.
Here, Plaintiffs ATS claims are that
Defendants aided and abetted and conspired with the
AUC from within the United States, resulting in war
crimes and the extrajudicial killing of Plaintiffs
decedents in Colombia. The extraterritorial location
of the deaths of Plaintiffs family members is
relevant to Plaintiffs claims that the killing of their
decedents by the AUC constituted extrajudicial
killings or war crimes. However, Plaintiffs also allege
relevant domestic conduct on the part of Defendants,
as they allege Defendants actions from within the
United States such as making decisions to engage
with the AUC and agreeing to fund the AUC aided
and abetted the AUC. We must now determine
whether these claims involve enough domestic
conduct to touch and concern the United States to
the degree necessary to displace the presumption.
In Cardona and Baloco II, the plaintiffs
proffered similar domestic conduct. Those opinions
concluded, either implicitly or explicitly, that general
allegations involving U.S. defendants domestic

Supp. App. 43

decision-making with regard to supporting and

funding terrorist organizations were insufficient to
warrant displacement and permit jurisdiction. See
Cardona, 760 F.3d at 119495 (Martin, J.,
dissenting) (describing the factual allegations
underlying the plaintiffs claims, implicitly rejected
by the majority); see also Baloco II, 767 F.3d at
123839 (Assuming arguendo that Drummond was
complicit in these murders in the manner described
by [p]laintiffs . . . , the allegations and evidence still
do not show conduct focused in the United States.).
We must similarly find that Plaintiffs claims
do not allege sufficient domestic conduct to displace
the presumption. Plaintiffs allege that generally,
Defendants made funding and policy decisions in the
United States; but Plaintiffs specifically allege that
the agreements between Defendants and the
perpetrators of the killings, the planning and
execution of the extrajudicial killings and war
crimes, the collaboration by Defendants employees
with the AUC, and the actual funding of the AUC all
took place in Colombia. In light of our precedent, the
domestic location of the decision-making alleged in
general terms here does not outweigh the
extraterritorial location of the rest of Plaintiffs
claims. See Baloco II, 767 F.3d at 123839; Cardona,
760 F.3d at 118991.
Further, Plaintiffs allegations of domestic
conduct and connections are not particularly
extensive or specific. See, e.g., Mastafa, 770 F.3d at
195 (requiring allegations of specific, domestic
conduct); accord Mujica, 771 F.3d at 592. This
paucity is apparent when we consider the allegations

Supp. App. 44

before the two circuit courts that have found that the
ATS claims met the touch and concern test. For
example, the plaintiffs before the Fourth Circuit
alleged extensive, explicit connections to and conduct
within the United States. There, the defendants
made pertinent contracts and obtained necessary
security clearances from the U.S. government in the
United States; further, the plaintiffs alleged that the
defendants approved and attempted to cover up the
specific extraterritorial violations at issue from
within the United States. See Al Shimari, 758 F.3d
at 53031.
Comparably, the Second Circuit found that the
claims before it touched and concerned the United
States after considering specific allegations of
defendants domestic purchases, delivery, and
financing arrangements in the United States, as well
as defendants facilitation of illegal payments
through a U.S.-based bank account to support the
extraterritorial violations at issue in that case. See
Mastafa, 770 F.3d at 195. Likewise, district courts
exercising jurisdiction after Kiobel have considered
allegations that are more specific or noted further
supporting evidence of domestic conduct and
connections than presented by Plaintiffs claims
here.32
See, e.g., Krishanti v. Rajaratnam, No. 2:09-CV-05395 JLL,
2014 WL 1669873, at *10 (D.N.J. Apr. 28, 2014) (unpublished)
(plaintiffs alleged that defendants hosted meetings with
operatives of and speakers for a designated terrorist
organization and transferred funds within theUnited States);
Sexual Minorities Uganda, 960 F. Supp. 2d at 321 (plaintiffs
alleged defendantcommunicated about legislation proposing
the death penalty for the targeted group and reviewed a draft
of the legislation and provided advice on its content from
32

Supp. App. 45

Most importantly, Plaintiffs have not

presented any evidence of additional domestic
conduct that would meet Baloco IIs requirements.
The circumstances underlying the ATS claims in this
case including the Defendants, paramilitary
perpetrators, general factual background, and
allegations of Defendants involvement are nearly
identical to those in Baloco II, even though these
Plaintiffs have had the added benefit of discovery.
Plaintiffs here continue to allege that an employee
obtained consent within the United States to provide
substantial financial and material support to the
AUC. These are the same allegations and evidence
we explicitly considered and rejected in Baloco II.
In that case, the plaintiffs alleged in their
complaint that the employee, Jim Adkins, obtained
consent in Alabama from Garry Drummond
[Drummond Companys President] and other
Drummond officials to provide substantial support to
the AUC. Baloco II, 767 F.3d at 1236 (internal
quotation marks omitted). The court then considered
the evidence in support of this assertion, which was
derived from the discovery in this case. See id. at
1236, 1238 (noting that [t]hese materials were
obtained from discovery in a related case and citing
to the proceedings below). Specifically, Baloco II
noted witness depositions and declarations stating,
within the United States); Mwani, 947 F. Supp. 2d at 5
(plaintiffs presented sufficient evidence that overt acts in
furtherance of the defendants conspiracy to attack the United
States by bombing a U.S. embassy occurred in the United
States).

Supp. App. 46

Adkins frequently traveled to the United States;

Adkins told [the witness] he would bring up the
issue of collaboration with the AUC with Garry
Drummond; subsequently, Drummond agreed to
fund the AUC; and the murders . . . were agreed to
by Garry Drummond. Id. at 1238.
Baloco II held that, regardless of the veracity
of the above allegations and admissibility of the
evidence, this was not enough . . . to establish that,
assuming [p]laintiffs claims touch and concern the
territory of the United States, they do so with
sufficient force to displace the presumption against
extraterritorial application. See id. at 1238. Here,
there are no distinguishable allegations or evidence
of conduct in the United States directed at the
extrajudicial killings and war crimes, and mere
consent is not enough.33 See id. at 1236, 123839.
Consequently, in this closely connected case, we
For this reason, one of Plaintiffs ancillary arguments that
the district court below erroneously excluded evidence of U.S.based conduct in making its jurisdictional decision must fail.
The district court refused to consider much of the testimony of
Plaintiffs key witnesses, Jairo Charris Castro and Jaime
Blanco Maya, specifically as it pertained to statements and
actions attributed to Adkins. The district courts exclusion of
this evidence in the case below is irrelevant given that, in
Baloco II, we considered this same evidence, explicitly
addressing these witnesses testimony, and found that even
assuming it is true and that it is admissible, [it] is not enough
to permit jurisdiction. See 767 F.3d at 1238 (considering
Blancos 2012 deposition and 2012 declaration, as well as
quotes from the 2012 deposition of Jairo Charris Castro).
Simply put, Plaintiffs have pointed us to no evidence of U.S.
conductadmissible or otherwisethat is additional to or
distinguishable from the evidence considered and rejected by
this court in Baloco II.
33

Supp. App. 47

must find that Plaintiffs allegations regarding

Defendants domestic conduct do not meet the
requisite factual predicate or act with the
forcefulness envisioned by Baloco II to warrant
displacement. See id. at 123839.
Although our two prior decisions may not
clearly address the scope and interpretation of
Kiobels touch and concern test, we cannot say the
same for their conclusions: plainly, the presumption
against extraterritoriality was not displaced. In the
absence of any evidence or allegations that
meaningfully distinguish Plaintiffs claims or compel
a different conclusion, we must adhere to the results
required by our precedent.34 Thus, although we find
that the U.S. citizenship and corporate status of
Defendants, the U.S. interests implicated by
Plaintiffs claims, and the U.S. conduct alleged are
relevant in considering whether Plaintiffs claims
have a U.S. focus and touch and concern the territory
of the United States, we must conclude that, in these
circumstances, those factors are not sufficient to
displace the presumption against extraterritoriality.
Accordingly, we do not have jurisdiction over
Plaintiffs ATS claims. In the absence of jurisdiction,
the additional ATS issues raised by Plaintiffs are
moot.
As a final note, we do not suggest that
alternate legal standards or interpretations of Kiobel
See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.
2008) (noting that our prior panel precedent rule requires
adherence to the holding of an earlier panel, absent abrogation
by the Supreme Court or reconsideration by this court sitting en
banc).
34

Supp. App. 48

would be met here; indeed, Plaintiffs allegations and

evidence in support thereof may not be able to
survive scrutiny for any number of reasons.35
Generally, plaintiffs in these suits face a veritable
plethora of additional doctrinal, procedural, and
evidentiary obstacles not addressed by this opinion,
all of which may render the exercise of jurisdiction
under the ATS impermissible, regardless of the
presumption against extraterritoriality. However,
Congress passed the ATS to be actionable, to have a
practical effect. See Sosa, 542 U.S. at 719, 124 S. Ct.
at 2758. Thus, even though we conclude that these
particular Plaintiffs claims are barred, caution is
warranted with regard to the legal standards
implemented in reaching that result. As Justice
Kennedy noted in Kiobel,
Other cases may arise with allegations of
serious violations of international law
principles protecting persons, cases covered
neither by the TVPA nor by the reasoning and
holding of todays case; and in those disputes
the proper implementation of the presumption
against extraterritorial application may
require some further elaboration and
explanation.
569 U.S. at ___, 133 S. Ct. at 1669 (Kennedy, J.,
concurring).
For instance, after making several evidentiary findings, the
district court below concluded that there was nothing left to
support Plaintiffs contention that Defendants made decisions
in the United States to conspire with and aid and abet the
commission of war crimes in Colombia, no matter how one
interprets the touch and concern test.
35

Supp. App. 49

Until such time as the Supreme Court

considers the issue, it is our responsibility to perform
the further elaboration and explanation envisioned
by Justice Kennedy when considering cases that are
not covered by the reasoning and holding of Kiobel.
See id. We are presented with such a case here. And
in these circumstances, we must conclude that the
presumption against extraterritoriality is not
displaced. Neither this court nor the district court
has jurisdiction to entertain Plaintiffs ATS claims,
and we affirm the district courts dismissal of the
same.
III. TORTURE VICTIM PROTECTION ACT
CLAIMS
Plaintiffs also brought suit pursuant to the
TVPA, a substantive Act that explicitly creates a
cause of action for claims of torture and extrajudicial
killing. See 28 U.S.C. 1350 note 2(a). Plaintiffs
are entitled to bring separate TVPA claims based on
the same underlying events as any claims
simultaneously brought under the ATS; the TVPA
provides an independent action for claims of
extrajudicial killing and torture. See Romero, 552
F.3d at 1315 (permitting plaintiffs to seek relief for
claims of extrajudicial killing under both statutes);
Aldana, 416 F.3d at 125051 (finding that the TVPA
provides a separate but not exclusive remedy for
claims of torture). As such, even when claims
brought under the ATS are unsuccessful, Plaintiffs
TVPA claims may potentially proceed on their own
merit.

Supp. App. 50

We consider the issues raised with regard to

the TVPA in three parts. In Part A., we address
whether we have jurisdiction to consider actions
proceeding under the TVPA in the first instance. In
Part B., we consider Plaintiffs TVPA claims on
appeal and affirm the district courts summary
judgment dismissal of those claims based on our de
novo review of the case. Our analysis would normally
end there. However, the district court erroneously
turned to international law to assess Plaintiffs
TVPA action, applying incorrect legal standards in
dismissing their claims. Thus, to prevent confusion
as to which standards apply both generally and
specifically, in our affirmance of the district courts
rulings in this case we set forth and clarify the
pertinent law in Part C.
A. Jurisdiction
In contrast to the ATS, which can confer
jurisdiction but does not include an independent
cause of action, the TVPA provides a cause of action
but contains no jurisdictional grant. See Romero, 552
F.3d at 1315. Our jurisdiction to consider Plaintiffs
TVPA claims is grounded, instead, in 28 U.S.C.
1331, the general federal question jurisdiction
statute. See id.; see also Sinaltrainal, 578 F.3d at
1269 (determining that 1331 conferred jurisdiction
over TVPA claims); Arce v. Garcia, 434 F.3d 1254,
1257 n.8 (11th Cir. 2006) (noting that we assume
jurisdiction [for TVPA claims] under 1331).
However, while we unquestionably have jurisdiction
to consider Plaintiffs TVPA claims, whether our
jurisdiction is limited by the extraterritorial nature
of Plaintiffs claims requires further analysis.

Supp. App. 51

Although we have not before had occasion to

do so, we hold now that the TVPA applies
extraterritorially. The text of the TVPA itself
indicates that actions may arise from conduct
occurring outside the United States. The Act
provides for the liability of any individual who acts
under actual or apparent authority, or color of law,
of any foreign nation; further, it contains an
exhaustion of remedies requirement instructing
courts to dismiss a claim if the plaintiff has not
exhausted adequate and available remedies in the
place in which the conduct giving rise to the claim
occurred. See 28 U.S.C. 1350 note 2(a)(b)
(emphasis added); see also Chowdhury v. Worldtel
Bangl. Holding, Ltd., 746 F.3d 42, 51 (2d Cir. 2014)
(finding that the texts language of any foreign
nation is best understood as addressing conduct that
occurs in the territory of foreign sovereigns), cert.
denied sub nom. Khan v. Chowdhury, ___ U.S. ___,
135 S. Ct. 401 (2014).
Accordingly, the Act itself gives clear
indication of an extraterritorial application. See
Morrison, 561 U.S. at 255, 130 S. Ct. at 287778
(requiring the affirmative intention of Congress
clearly expressed to give a statute extraterritorial
effect (internal quotation marks omitted)); see also
Kiobel, 569 U.S. at ___, 133 S. Ct. at 1669 (Kennedy,
J., concurring) (noting that [m]any serious concerns
with respect to human rights abuses committed
abroad have been addressed by Congress in statutes
such as the [TVPA] (emphasis added)).

Supp. App. 52

Although the text of the TVPA alone is

sufficient to illustrate the Acts
intended
extraterritoriality, the legislative history fully
supports this conclusion. See, e.g., S. Rep. No. 102249, at 34 (1991) (describing the TVPA as
providing a civil cause of action in U.S. courts for
torture committed abroad); id. at 5 ([W]hile the
[ATS] provides a remedy to aliens only, the TVPA . . .
extend[s] a civil remedy also to U.S. citizens who
may have been tortured abroad.); id. (Congress
clearly has authority to create a private right of
action for torture and extrajudicial killings
committed abroad.); H.R. Rep. No. 102-367, at 3
(1991) (Judicial protections agains[t] flagrant
human rights violations are often least effective in
those countries where such abuses are most
prevalent. A state that practices torture and
summary execution is not one that adheres to the
rule of law. . . . The [TVPA] would respon[d] to this
situation.).
Thus, we find that our jurisdiction over TVPA
actions under 1331 is not constrained by the
presumption against extraterritoriality, and we turn
to our discussion of the merits of Plaintiffs TVPA
claims.
B. Plaintiffs TVPA Claims
Plaintiffs claims can only proceed, if at all,
against Tracy and Jimenez
(jointly, the individual defendants).36 Plaintiffs
contend that Tracy and Jimenez are each legally
The TVPA does not authorize liability against corporate
entities. Mohamad, 566 U.S. at ___, 132 S. Ct. at 1708.
Plaintiffs do not contest the district courts dismissal of their
36

Supp. App. 53

responsibledue to involvement with and support of

the violent paramilitaries in the AUCfor the
extrajudicial killings of Plaintiffs decedents by the
AUC. Plaintiffs sued Tracy and Jimenez under 2 of
the TVPA, which provides that a person who
subjects an individual to extrajudicial killing shall,
in a civil action, be liable for damages to the
individuals legal representative, or to any person
who may be a claimant in an action for wrongful
death.37 28 U.S.C. 1350 note 2(a)(2). By its
terms, the TVPA supports claims based on theories
of indirect liability. See, e.g., Cabello, 402 F.3d at
1157; Aldana, 416 F.3d at 1248; Sinaltrainal, 578
F.3d at 1258 n.5.
Tracy and Jimenez brought individual motions
for summary judgment with regard to Plaintiffs
claims for extrajudicial killing in violation of the
TVPA. In response, Plaintiffs advanced several
theories of liability, arguing that their claims should
TVPA claims against Drummond Company and Drummond
Ltd.; regardless, any such challenge would fail pursuant to the
Supreme Courts determination in Mohamad. See id. Also,
Plaintiffs failed to brief any challenge to the district courts
dismissal of their claims against all other individual
defendants; they have thus abandoned those claims on appeal.
See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324,
1330 (11th Cir. 2004); see also Fed. R. App. P. 28(a)(5).
37 37 There is also a color of state law requirement for claims
brought under the TVPA. See, e.g., Romero, 552 F.3d at 1317
(requiring proof of a symbiotic relationship between a private
actor and the government that involves the torture or killing
alleged in the complaint to satisfy the requirement of state
action under the TVPA). Here, the district court determined
that the AUCs relationship with the Colombian government
satisfied this requirement.

Supp. App. 54

be permitted to proceed against the individual

defendants under these theories. Plaintiffs proffered
theories took several forms, including aiding and
abetting, conspiracy, agency, and command
responsibility.
In dispensing with Plaintiffs TVPA claims,
the district court made several findings that are
relevant to the parties arguments before us now.
The court found that international law controls the
analysis of claims brought under the TVPA, leading
it to reject Plaintiffs agency theory of liability
outright, apply a heightened mens rea standard to
Plaintiffs aiding and abetting theory of liability, and
dismiss Plaintiffs command responsibility theory.
After making these determinations and applying the
standards it articulated, the district court found that
Plaintiffs admissible evidence did not raise a
genuine issue of material fact as to either of the
individual defendants liability. Subsequently, the
court granted summary judgment to Tracy and
Jimenez, respectively.
Plaintiffs appeal the grants of summary
judgment, averring that the district court erred in its
determinations. In response, Tracy and Jimenez
argue that Plaintiffs evidence was simply
insufficient to survive summary judgment; thus, the
district courts entry of summary judgment should
stand regardless of which body of law controls or
what theories are available. We agree with the
individual defendants, and we affirm on that basis.38
Plaintiffs also argue the district court erred in refusing to
consider certain witness testimony offered by Plaintiffs in
opposition to the individual defendants motions for summary
38

Supp. App. 55

See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1117

(11th Cir. 1993) (finding that we may affirm the
district courts grant of summary judgment if any
adequate ground for doing so exists).
We have plenary review over the district
courts summary judgment dismissals of Plaintiffs
TVPA claims against Tracy and Jimenez. See
Romero, 552 F.3d at 1313. Disposition of the case by
summary judgment is proper if the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if
any, show 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. Fitzpatrick, 2 F.3d at
1115 (quoting Fed. R. Civ. P. 56(c)).
As relevant here, when the summary
judgment movant does not bear the burden of proof
at trial, the movant may show that there is an
absence of evidence to support the non-moving
partys case; a negation of the non-moving partys
claim is not required. See id. at 111516 (internal
quotation marks omitted). If the movant shows that
there is an absence of evidence, the non-moving
party who bears the burden of proof at trial must
contradict this showing by demonstrating that the
record in fact contains supporting evidence, sufficient
to withstand a directed verdict motion. Id. at 1116.
judgment. However, we do not find that the district court
committed reversible error in its evidentiary rulings. See
Macuba v. Deboer, 193 F.3d 1316, 132425 (11th Cir. 1999)
(finding that the district court should not consider evidence at
summary judgment if it would not be admissible at trial).

Supp. App. 56

In the alternative, the non-movant may come

forward with additional evidence sufficient to
withstand a directed verdict motion at trial based on
the alleged evidentiary deficiency. Id. at 111617. At
summary judgment in the proceedings below, Tracy
and Jimenez demonstrated an absence of evidence in
support of Plaintiffs case. They proffered that, with
discovery at an end, Plaintiffs had not uncovered any
evidence to support liability. Specifically, there was
no admissible evidence that either Tracy or Jimenez
had any knowledge of an alleged corporate scheme to
fund or otherwise support the AUC, much less that
they had any part in such a scheme or control over
those who allegedly did.
At this point, Plaintiffs could not rely upon
mere allegations to survive summary judgment, but
were required to either point out evidence in the
record or provide additional evidence in support of
their claims sufficient to withstand a directed verdict
motion. See id. at 1116 n.3; Kesinger ex rel. Estate of
Kesinger v. Herrington, 381 F.3d 1243, 124950
(11th Cir. 2004) ([A] mere scintilla of evidence in
support of the non-moving partys position is
insufficient to defeat a motion for summary
judgment.). Thus, we look to see whether Plaintiffs
have produced any admissible evidence from which a
jury could hold Tracy and Jimenez liable for the
extrajudicial killings of Plaintiffs decedents by the
AUC.
Reviewing the record de novo, we find that
Plaintiffs have failed to adduce any evidence creating
a genuine issue of material fact as to Tracys or
Jimenezs liability for any alleged corporate scheme

Supp. App. 57

resulting in the killings of noncombatants along

Defendants mining operations and rail lines by the
AUC. See Fitzpatrick, 2 F.3d at 1117. Even under
the correct legal standards and construing the facts
in the light most favorable to Plaintiffs, there is no
factual basis to sustain liability for Plaintiffs TVPA
claims against the individual defendants.
By way of a brief example, the district court
set forth a heightened mens rea standard for aiding
and abetting liability, requiring purpose or specific
intent rather than knowledge. Consequently, the
district court incorrectly stated that Plaintiffs must
establish that the individual defendants acted with
the intent to have noncombatants murdered along
Drummonds rail lines. As explained in more detail
below, the district court should have instead looked
for active participation, which is supported if the
defendants gave knowing substantial assistance to
the individuals committing the wrongful act. See
Cabello, 402 F.3d at 115759.
However, despite the more challenging mens
rea requirement it articulated, the district court
found that there was no evidence that Tracy knew
that noncombatants were being murdered along the
rail lines, and further noted an absence of any
evidence of Tracys knowledge that the AUC was
allegedly being paid by Drummond. Similarly, the
district court found that Plaintiffs had proffered no
admissible evidence with regard to Jimenezs
knowledge other than Jimenezs general awareness
of the presence of the AUC and the AUCs violent
methods.

Supp. App. 58

While we reject the legal standard that the

district court set forth, our independent review of the
record supports the district courts factual findings as
to the absence of evidence creating a genuine issue of
fact. This forecloses Plaintiffs claims even under the
appropriate standard. See Fed. R. Civ. P. 56(c); see
also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
24950, 106 S. Ct. 2505, 2511 (1986) (determining
that an issue is only genuine if it is supported by
the evidence; it is not genuine if it is created by
evidence that is merely colorable or not
significantly probative).
Plaintiffs allegations paint a different picture,
but those allegations, repeated before us here, do not
bear out in the record. At the summary judgment
stage, evidentiary support is required; no legal
theories can sustain a claim in the absence of
admissible evidence in support thereof. See
Fitzpatrick, 2 F.3d at 111617; see also Kesinger,
381 F.3d at 124950. Our de novo review of the
record supports the entry of summary judgment on
Plaintiffs TVPA claims against Tracy and Jimenez,
and for this reason, we affirm the rulings of the
district court.
C. Applicable Legal Standards
Having found a sufficient basis to affirm the
district courts entry of summary judgment, our
inquiry would ordinarily end. However, the
circumstances of this case require further discussion,
since the district court applied the wrong substantive
law when dismissing Plaintiffs claims on summary
judgment. This error is significant because, in

Supp. App. 59

determining whether a genuine issue of material

factprecludes summary judgment, [t]he substantive
law applicable to the case determines which facts are
material. See Fitzpatrick, 2 F.3d at 1115.
Accordingly, our finding that there are no
genuine issues of material fact is premised on the
application of the correct substantive law. See id. at
1117. Thus, we discuss the relevant legal standards
raised on appeal to demonstrate the basis on which
we affirmed the entry of summary judgment in the
current case and to clarify the applicable law for
future actions proceeding solely under the TVPA.39
In the proceedings below, the district court
mistakenly looked to international law to interpret
the TVPA, leading to additional incorrect legal
determinations with regard to Plaintiffs TVPA
claims. We correct these errors, finding as follows: (1)
the interpretation of the TVPA is governed by its
text, legislative history, and general principles of
U.S. law; (2) theories of liability recognized in U.S.
law are available to TVPA claimants; (3) the mens
rea standard for an aiding and abetting theory of
liability in this circuit is knowledge; and (4) the
command responsibility doctrine is an available
Given recent developments with regard to the ATS, it is likely
that more claims will be brought solely under the TVPA.
Although plaintiffs frequently bring (and we have subsequently
considered) claims under the ATS and the TVPA concurrently,
the two causes of action have certain differences, ones that
became apparent and important in this case. See, e.g., Baloco I,
640 F.3d at 1345 (noting that [t]he TVPA differs from the ATS
in certain crucial ways); Aldana, 416 F.3d at 1252 (noting that
dissimilarities between the ATS and TVPA might actually
make a difference in some cases).
39

Supp. App. 60

theory of liability contingent on sufficient allegations

of authority and control. We address our reasons for
these findings and precedent in support thereof in
the order listed.
(1) Interpreting the TVPA
Preliminarily, the district court refused to
recognize theories of liability for Plaintiffs TVPA
claims if the theories were not accepted in
international law, a view which Defendants urge us
to adopt in assessing Plaintiffs claims on appeal.
However, international law does not determine our
interpretation of the TVPA. The TVPA and claims
brought thereunder are governed by its language, its
legislative history, and general principles of domestic
law.40 Our interpretation and application of the
TVPA make this abundantly clear. See, e.g., Baloco I,
640 F.3d at 134850 (examining the TVPAs text,
purpose, and legislative history to interpret the
TVPA and applying state wrongful death law,
without reference to customary international law);
Cabello, 402 F.3d at 1159 (defining accessorial
liability as set forth in the federal common-law
context).

See, e.g., Mohamad, 566 U.S. at ___, 132 S. Ct. at 1709

(noting that Congress is understood to legislate against a
background of common-law adjudicatory principles unless it
plainly overrides those principles (internal quotation marks
omitted)); Kiobel, 569 U.S. at ___, 133 S. Ct. at 1669 (Kennedy,
J., concurring) (noting that TVPA cases will be determined in
the future according to the detailed statutory scheme Congress
has enacted).
40

Supp. App. 61

Indeed, on the rare occasions when we do look

to general principles of international law for
guidance as to what a theory of liability or statutory
definition requires, we do so only because the TVPA
itself implicitly or explicitly incorporated those
principles from international law. See Ford ex rel.
Estate of Ford v. Garcia, 289 F.3d 1283, 1289 (11th
Cir. 2002) (looking to international law for guidance
as to the elements of command responsibility because
legislative history makes clear that Congress
intended to adopt the doctrine of command
responsibility from international law as part of the
[TVPA]); see also S. Rep. No. 102-249, at 10 (noting
that interpretation of the exhaustion of remedies
requirement should be informed by general
principles of international law).
In other places, the legislative history instead
directs us to domestic law; we are told to apply
principles of liability under U.S. civil rights laws, in
particular [42 U.S.C. 1983], in construing under
color of law as well as interpretations of actual or
apparent authority derived from agency theory in
order to give the fullest coverage possible. See, e.g.,
S. Rep. No. 102-249, at 8.
The district court found that the Supreme
Courts decision in Sosa compelled it to look to
customary international law and restrict the theories
of liability available to TVPA plaintiffs. However,
Sosa is inapplicable here. First, Sosa warned courts
to exercise vigilant doorkeeping when considering
whether to recognize new causes of action under the
ATS (that is, new law of nations violations). See
Sosa, 542 U.S. at 72529, 124 S. Ct. at 276264.

Supp. App. 62

Even in ATS cases, we have not clearly applied this

constraint to our recognition of legal theories of
liability for existing causes of action under the ATS.
Second, Sosa only applies to the ATS; it has no effect
on the causes of action explicitly set forth in the
TVPA or the theories of liability recognized in
support thereof.41 See, e.g., Sinaltrainal, 578 F.3d at
126364 (noting ways in which [t]he TVPA is
broader than the ATS); Aldana, 416 F.3d at 1252
([N]either Congress nor the Supreme Court has
urged us to read the TVPA as narrowly as we have
been directed to read the [ATS].).
Thus, international law does not set the
standard for TVPA claims; instead, the TVPA should
be interpreted through reference to its text,
legislative history, and general principles of domestic
law. Again, we have used this approach repeatedly in
our precedent. For example, when we were recently
required to interpret the TVPA, we examined the
plain text of the Act, its purpose, and its legislative
history to address whether the claimants before us
had a cause of action. See Baloco I, 640 F.3d at 1345
47. After determining that, as a general matter,
wrongful death claimants are eligible to bring suit
for damages under the TVPA, we then turned to
whether the plaintiffs in the case before us were in
fact proper wrongful death claimants. See id. at
134849. Since the TVPA did not indicate whether
Defendants confuse the ATS and TVPA, as did the district
court. While international law is crucial to the ATS analysis,
see supra Part II(A)(1), the TVPA sets forth the prohibited
behavior within the Act itself. Contrary to claims brought under
the ATS, claims under the TVPA are in no way dependent on a
violation of customary international law.
41

Supp. App. 63

Congress intended state law or federal law to

provide the answer, we considered the legislative
history of the Act. See id. at 134850.
We found congressional intent that state law
should govern the determination . . . and, where
state law would provide no remedy, a court may
apply the foreign law that would recognize the
plaintiffs claim. See id. at 1349. Thus, determining
who could be a claimant in the action at hand
implicated the conflict laws of Alabama and the
substantive wrongful death law of Colombia. See id.
At no point in this analysis did we consult customary
international law not to determine what cause of
action was available, nor who could sue, nor whether
federal or state law would govern the applicable
requirements. See id. at 134950.
(2) Theories of Liability under the TVPA
Further, since domestic law sets the standards
for the TVPA, secondary or indirect theories of
liability recognized by U.S. law are available for
claims brought under the TVPA.42 The TVPA
contemplates liability against those who did not
personally execute the torture or extrajudicial
killing. See Mohamad, 566 U.S. at ___, 132 S. Ct. at
Because the district court below turned to international law,
it incorrectly held that ratification, a secondary liability theory
from agency law, could not support liability under the TVPA.
However, [t]he weight of authority makes clear that agency
theories of liability are available in the context of a TVPA
claim. See, e.g., Chowdhury, 746 F.3d at 52, 53 n.11 (affirming
a jury verdict predicated on agency theories of liability,
including ratification).
42

Supp. App. 64

1709 (emphasis added); Aldana, 416 F.3d at 1248

([T]he [TVPA] reaches those who ordered, abetted,
or assisted in the wrongful act.); see also
Chowdhury, 746 F.3d at 52 (noting that agency law
can provide a theory of tort liability if a defendant
did not personally torture the victim).
Importantly, the TVPA and its legislative
history in no way disavow reliance on traditional
theories of tort liability for secondary actors under
the TVPA. See Meyer v. Holley, 537 U.S. 280, 287,
123 S. Ct. 824, 829 (2003) (Where Congress . . . has
not expressed a contrary intent, the Court has drawn
the inference that it intended ordinary rules to
apply.). To the contrary, the legislative history
endorses an expansive view of liability under the
TVPA: [R]esponsibility for torture, summary
execution, or disappearances extends beyond the
person or persons who actually committed those
actsanyone with higher authority who authorized,
tolerated or knowingly ignored those acts is liable for
them. S. Rep. No. 102-249, at 9. Thus, theories of
liability under domestic law are available to support
TVPA claims by providing a theory of tort liability
when the defendant did not personally commit the
underlying act.43
The availability of and potential for success on these theories
will be constrained, of course, by other relevant TVPA
requisites. By way of example, both the TVPAs explicit state
action requirement and federal pleading standards could prove
problematic. In an earlier case, we noted the plaintiffs layered
theory of agency and alter ego liability. See Sinaltrainal, 578
F.3d at 1259. We then dismissed the TVPA claims because the
complaint did not state a facially plausible claim for relief; the
vague and conclusory allegations of a conspiracy between
purported state actors and the defendants or their agents did
43

Supp. App. 65

(3) Standards for Aiding and Abetting Liability

When considering whether the secondary
theories of liability are met, we turn to federal
common law for the relevant standards. Our opinion
in Cabello, 402 F.3d 1148, forms the basis for aiding
and abetting liability in this circuit. See Romero, 552
F.3d at 131516 (recognizing that our decision in
Cabello binds all subsequent panels of this court as
to aiding and abetting liability).
In Cabello, we addressed whether claims
based on secondary liability are actionable under the
ATS and TVPA. 402 F.3d at 115760 (upholding a
jury verdict premised on indirect liability claims
under the ATS and the TVPA). We relied on
persuasive authority from two other circuits to find
that the ATS reaches conspiracies and accomplice
liability. See id. at 1157. Turning to the TVPA, we
found that the legislative history indicates that the
TVPA was intended to reach . . . those ordering,
abetting, or assisting in the violation. Id. Thus, the
law of this Circuit permits a plaintiff to plead a
theory of aiding and abetting liability under the
[ATS] and the [TVPA]. Romero, 552 F.3d at 1315.
We then looked to federal common law to
establish the requisite standards, incorporating the
not meet the TVPAs state action requirement. Id. at 1270; see,
e.g., Roger P. Alford, The Future of Human Rights Litigation
After Kiobel, 89 Notre Dame L. Rev. 1749, 1756 (2014) (The
likelihood that corporate officers acted under color of foreign
law will be rare, and even assuming they did, pleading that fact
as a plausible occurrence will be extraordinarily difficult in
light of heightened federal pleading standards.).

Supp. App. 66

legal standards from Halberstam v. Welch, 705 F.2d

472 (D.C. Cir. 1983).44 See Cabello, 402 F.3d at 1158
59. In so doing, we found that indirect liability for
aiding and abetting required the plaintiffs to prove
active participation by the preponderance of the
evidence. See id. at 1158. Liability for active
participation was supported if the wrongful act at
the center of the claim was, in fact, committed, and
the defendant gave knowing substantial assistance
to the person or persons who committed the wrongful
act. See id.; see also Halberstam, 705 F.2d at 478
(aiding and abetting liability focuses on whether a
defendant knowingly gave substantial assistance to
someone who performed wrongful conduct).
Thus, to affirm the jury verdict against the
defendant, we looked for evidence of a knowledge
mens rea and substantial assistance actus reus.
See id. at 115859. We then applied this standard to
find that the evidence sufficiently supported aiding
and abetting liability. See id. at 1159 ([T]he
statements attributed to [the defendant] reflect his
knowledge that he was assisting in wrongful
activity. (emphasis added)); id. at 115859 (finding
support for knowledge and substantial assistance
because the defendant served as the primary
Although we explicitly cited Halberstam for conspiracy
liability, we clearly incorporated and applied Halberstams
aiding and abetting standards as well. In turn, Halberstam
relied upon the Restatement (Second) of Torts to set the
standards for aiding and abetting liability. See Halberstam, 705
F.2d at 478, 481, 48788. The Halberstam decision has been
cited approvingly by the Supreme Court as a comprehensive
opinion on the subject [of aiding and abetting]. See Cent. Bank
of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511
U.S. 164, 181, 114 S. Ct. 1439, 1450 (1994).
44

Supp. App. 67

perpetrators bodyguard and was present when the

perpetrator selected the files of the victims).
Accordingly, as reflected in our controlling
precedent, the appropriate standard for aiding and
abetting liability is knowing substantial assistance.
See id. at 1158.
(4) Command Responsibility Doctrine
We turn now to the superior or command
responsibility doctrine.45 The district courts
determination that Plaintiffs claims against Tracy
and Jimenez could not continue under this doctrine
necessitates a more in-depth explanation.
Pertinent to our discussion here, the district
court found that [t]he theory has only been extended
to
civilians
where
those
individuals
had
authoritative control over state-run military or
public forces and decline[d] to extend the theory of
command responsibility to officers of private
corporations. To the extent that the district courts
opinion may be construed as holding that, as a
matter of law, command responsibility liability does
not apply to Tracy and Jimenez simply due to their
statuses as civilians and/or officers of a private
corporation, we disagree. However, the doctrine is
not broadly available to support liability under the
TVPA. We address this issue separately to clarify.
We have referred to this theory of liability as the command
responsibility doctrine in our precedent, integrating the concept
of the superior relationship into the elements we set forth
therein, and thus we refer to it by this designation. See Ford,
289 F.3d at 128889.
45

Supp. App. 68

As explained above, we generally do not look

to international law for guidance with regard to the
TVPA; however, when we do, it is because the TVPA
or its legislative history instructs us to do so. This is
one of those times. [L]egislative history makes clear
that Congress intended to adopt the doctrine of
command responsibility from international law as
part of the [TVPA]. See Ford, 289 F.3d at 1289. We
have held that three indispensable elements are
required to support liability under the command
responsibility doctrine:
(1) the existence of a superior-subordinate
relationship between the commander and the
perpetrator of the crime; (2) that the
commander knew or should have known,
owing to the circumstances at the time, that
his subordinates had committed, were
committing, or planned to commit acts
violative of the law of war; and (3) that the
commander failed to prevent the commission
of the crimes, or failed to punish the
subordinates after the commission of the
crimes.
Ford, 289 F.3d at 1288; accord Chavez v. Carranza,
559 F.3d 486, 499 (6th Cir. 2009). In order to
establish the first element (the superior-subordinate
relationship), plaintiffs must allege facts plausibly
suggesting that the defendants had effective
control over the perpetrators. Ford, 289 F.3d at
1290.

Supp. App. 69

There is extensive support from international

law and in the text, legislative history, and
jurisprudence of the TVPA for civilian liability under
the command responsibility doctrine.46 See, e.g., Doe
v. Qi, 349 F. Supp. 2d 1258, 133031 (N.D. Cal. 2004)
(examining the text and legislative history of the
TVPA to find that the Senate implicitly endorsed
the application of command responsibility to acts of
torture and extrajudicial killings whether committed
by military or civilian forces and did not limit its
applicability to acts of military officials or the context
of war); Brief of Amici Curiae International
Criminal Law Scholars in Support of PlaintiffsAppellants at 618, Doe v. Drummond Co., No. 1315503 (11th Cir. filed May 1, 2013) (citing numerous
cases wherein civilians, including private business
owners, have been found liable under this doctrine in
customary international law and in current
international tribunals).
Thus, a civilian superior including a civilian
corporate officer could feasibly be held liable
under the doctrine provided the plaintiffs
demonstrated a superior-subordinate relationship
between the civilian and the perpetrator, averring
that the civilian was in the requisite position of
authority and control. See, e.g., Ford, 289 F.3d at
1291; id. at 1298 (Barkett, J., concurring)
Again, since the doctrine is adopted from international law,
we turn thereto for guidance; both criminal and civil cases from
international law may be persuasive. See Ford, 289 F.3d at
1289 & n.6 (using criminal cases to interpret the doctrine in the
absence of congressional intent for courts to draw any
distinction in their application of command responsibility in the
civil arena).
46

Supp. App. 70

([I]nternational law provides that an official without

legal authority may be held responsible for others
violations of international law where that official
exercised a degree of control sufficient to confer de
facto authority.).
The question of whether this doctrine is
available, then, is not answerable simply by
assessing who is being controlled by whom; nor is it
broadly available to be used by all plaintiffs against
all defendants under the TVPA. Instead, this
doctrine is available if the requisite degree of
responsibility, authority, and control is present to
support liability.47 See id. at 1291 (majority opinion)
(Proof is required that the superior has effective
control over the persons committing the violations of
international humanitarian law in question, that is,
has the material ability to prevent the crimes and to
punish the perpetrators thereof. (internal quotation
marks omitted)); id. at 129798 (Barkett, J.,
concurring) (A de facto superior is an official who
exercises powers of control over subordinates that
are substantially similar to those exercised by de jure
Of course, the other requirements of the TVPA must be
satisfied as well, and there are additional hurdles that could
prove prohibitive for future plaintiffs proceeding on such a
theory. For example, if neither the superior nor the subordinate
are acting on behalf of or in close connection with a state, the
plaintiff may have difficulty establishing that the claim
comports with the TVPAs state action requirement; or, if the
secondary liability of the superior must rest on another
secondary liability theory, the application of the doctrine may
be too attenuated or the act too remote to support liability. The
command responsibility doctrine is, however, merely one theory
of potential liabilitythe absence thereof does not negate a
TVPA claim under an alternate theory of liability. See Cabello,
402 F.3d at 1157.
47

Supp. App. 71

authorities. (internal quotation marks omitted)); see

also Qi, 349 F. Supp. 2d at 133031. Therefore,
although this doctrine was not sustainable to support
liability in the case before us, we do not foreclose the
possibility that, under different circumstances, the
doctrine of command responsibility may afford a
basis for liability of a private corporate officer in a
TVPA claim.48
On a concluding note, we acknowledge that
TVPA claimants may face significant hurdles in
bringing suit against individuals employed by or
working on behalf of a company rather than the
corporate entity itself. The Supreme Court
recognized numerous factors that make these claims
challenging; for example, [v]ictims may be unable to
identify the men and women who subjected them to
[the violation], all the while knowing the
organization for whom they work. Mohamad, 566
U.S. at ___, 132 S. Ct. at 1710. And here, Plaintiffs
may have encountered at least one of these
challenges in pursuing their claims; their allegations
did not yield sufficient admissible evidence after
discovery to sustain their TVPA action against the
In these circumstances, the command responsibility doctrine
could not sustain Plaintiffs claims. Specifically, Plaintiffs failed
to produce any evidence that plausibly supports the first
element of the doctrine, the superior-subordinate relationship,
which requires that the defendants have effective control over
the perpetrators. See Ford, 289 F.3d at 1288, 1290. The record
does not reflect that Tracy or Jimenez were in a position of
authority or control such that either defendant could be held
legally responsible as either de facto superiors or de jure
authorities for actions that were ultimately committed by the
AUC. See id. at 129091.
48

Supp. App. 72

individual defendants. Nonetheless, this is the

legislative scheme in which TVPA plaintiffs must
operate. See id. Given that our independent review of
the record presents no triable issue of fact as to
liability, we affirm the district courts dismissal of
Plaintiffs TVPA claims.
IV. COLOMBIAN LAW WRONGFUL DEATH
CLAIMS
Finally, Plaintiffs have failed to present
compelling grounds for reversal as to their remaining
issues on appeal, which pertain to (a) the district
courts refusal to exercise supplemental jurisdiction
over their wrongful death claims based on Colombian
law, and (b) the courts denial of their motion to
vacate to pursue those same claims.49 We review
both decisions for abuse of discretion. See Romero,
552 F.3d at 131314 (supplemental jurisdiction);
Aldana v. Del Monte Fresh Produce N.A., Inc., 741
F.3d 1349, 1351, 1355 (11th Cir. 2014) (motion to
vacate).
Early in this litigation, the district court
declined to exercise supplemental jurisdiction over
Plaintiffs wrongful death claims, finding that the
claims presented sufficiently complex issues under
Colombian law such that it would be impossible for
the court to navigate and apply the Colombian law
In the same order, the district court also refused to grant
Plaintiffs leave to conduct limited discovery as to Defendants
actions in the United States. Since Plaintiffs failed to raise any
challenges in their initial brief to this court with regard to this
issue, they have abandoned it on appeal. See Access Now, Inc.,
385 F.3d at 1330; see also Fed. R. App. P. 28(a)(5).
49

Supp. App. 73

requisites. Later, after the district court dismissed

the remainder of Plaintiffs claims, Plaintiffs moved
to vacate the judgment. Plaintiffs sought to amend
their complaint to dismiss Jimenez and achieve
complete diversity, permitting Plaintiffs to proceed
on their wrongful death claims based on Colombian
law. The district court refused to allow such
amendment, citing Plaintiffs failure to seek
reinstatement of those claims under diversity
jurisdiction or to file them in Colombia four years
earlier, when the district court originally dismissed
them. The court concluded that reopening those
claims would be extremely prejudicial and would
require substantial additional expense, preparation,
and discovery.
Under 28 U.S.C. 1367, the supplemental
jurisdiction statute, a district court may decline
supplemental jurisdiction when the claim raises a
novel or complex issue of State law. Romero, 552
F.3d at 1318 (quoting 28 U.S.C. 1367(c)(1)). In
Romero, we noted that the district court had the
benefit of extensive briefing with regard to
Colombian wrongful death claims, but that it was
unable to reconcile conflicting translations of
Colombian legal precedents, to navigate the
complexities of the parties submissions, or to discern
. . . the Colombian law requisites for a wrongful
death claim. Id. (internal quotation marks omitted).
Consequently, in the Romero appeal, we affirmed the
district courts discretionary decision to decline
jurisdiction. See id.
Here, Plaintiffs argue that the district court
below improperly concluded that their claims raised

Supp. App. 74

complex Colombian law issues by relying on another

courts decision, one that was only reached after
extensive briefing on the matter. However, they
have pointed us to no law that compels the
conclusion that the district courts decision was a
clear error of judgment. After the district court
explicitly noted that it had considered the briefs and
evidentiary submissions before it, the court properly
considered our guidance in Romero and concluded
that the similar claims herein raised sufficiently
complex issues, rendering it impossible for th[e]
court to navigate the Colombian law requisites. The
district court did not abuse its discretion in declining
to exercise supplemental jurisdiction over the
wrongful death claims.
Plaintiffs also appeal the district courts denial
of their motion under Federal Rule of Civil Procedure
60(b)(6) to vacate the judgment and allow Plaintiffs
to amend their complaint to perfect diversity and
pursue Colombian law claims. Rule 60(b) is the
procedural means by which a party may seek relief
from a final judgment. Aldana, 741 F.3d at 1355.
Generally, relief may only be provided in specific
circumstances such as mistake or fraud; however, as
relevant here, the final provision of the rule
provides a catch-all, authorizing a court to grant
relief from a judgment for any other reason that
justifies relief. Id. (quoting Fed. R. Civ. P. 60(b)(6)).
We have carefully constrained this open-ended
language. Id.
To warrant relief under Rule 60(b)(6), not only
must Plaintiffs show sufficiently extraordinary
circumstances, but also that absent such relief, an

Supp. App. 75

extreme and unexpected hardship will result.

Galbert v. W. Caribbean Airways, 715 F.3d 1290,
129495 (11th Cir. 2013) (internal quotation marks
omitted). Vacating a judgment to allow pursuit of
claims under an alternate theory of liability is
usually permissible under Rule 60(b)(6) when
unavailability is unforeseeable, such as when a
foreign forum adopts a new rule. Aldana, 741 F.3d
at 1357; but see Ritter v. Smith, 811 F.2d 1398, 1401
(11th Cir. 1987) ([A] change in the law will not
always
provide
the
truly
extraordinary
circumstances necessary to reopen a case.). To
require reversal of a district courts denial of a Rule
60(b)(6) motion on appeal, plaintiffs must
demonstrate a justification so compelling that the
district court was required to vacate its order.
Aldana, 741 F.3d at 1355 (internal quotation marks
omitted).
Here, the district court dismissed Plaintiffs
ATS claims on the basis that they did not meet the
new standard set in Kiobel. Assuming without
deciding that the Supreme Courts decision in Kiobel
constituted sufficiently extraordinary circumstances
such that the district court could reopen the case,
[e]ven then, whether to grant the requested [Rule
60(b)] relief was a matter for the district courts
sound discretion. See id. (alteration in original)
(internal quotation marks omitted). We simply
cannot say that it was an abuse of discretion to deny
Plaintiffs motion to vacate the judgment. Although
granting Plaintiffs motion would have been
permissible, Plaintiffs have failed to demonstrate a
justification so compelling that the district court was

Supp. App. 76

required to vacate its order.50 See Galbert, 715 F.3d

at 1294 (emphasis added) (internal quotation marks
omitted) (It is not enough that the granting of relief
might have been permissible, or even warranted;
rather, the decision to deny the motion must have
been sufficiently unwarranted as to constitute an
abuse of discretion. (internal quotation marks
omitted)).
We conclude that the district court did not
abuse its discretion in declining to exercise
supplemental jurisdiction over the Colombian
wrongful death claims in the first instance or in
refusing to vacate the judgment to allow Plaintiffs to
amend their complaint so that they might pursue
those same claims after the merits of the federal
claims were dismissed. Therefore, we affirm the
district courts initial opinion dismissing Plaintiffs
wrongful death claims and its later opinion denying
Plaintiffs motion to vacate.
V. CONCLUSION
While Plaintiffs rely on case law supporting that district
courts should freely grant leave to amend, these cases do not
support Plaintiffs argument here. The district court did grant
Plaintiffs leave to amend, and did so more than once; further,
the deadline to amend the pleadings passed several years prior
to Plaintiffs motion to vacate and amend. See Bryant v.
Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (per curiam) (a
district court is not required to allow amendment of the
pleadings if there has been undue delay or when amendment
would result in undue prejudice to the opposing party); see also
Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir. 1999)
(Prejudice and undue delay are inherent in an amendment
asserted after the close of discovery and after dispositive
motions have been filed, briefed, and decided.).
50

Supp. App. 77

Having consulted and considered the briefs,

the record, and the applicable legal authorities, we
affirm all rulings of the district court before us on
appeal.
AFFIRMED.

Supp. App. 78