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An effort by the Bush administration and the business community to halt federal litigation against corporations sued for human rights violations abroad suffered a major blow in the U.S. Court of Appeals for the Ninth Circuit in June. The government and business organizations had filed amicus briefs in a case against Unocal Corporation over alleged human rights abuses in Myanmar. The briefs argue that the Alien Tort Claims Act does not create a cause of action permitting foreign nationals to bring human rights claims in federal courts for conduct occurring outside the United States. The Unocal case � viewed as pivotal by human rights and corporate defense lawyers in the fight over ATCA � was heard by the full Ninth Circuit in mid-June. The court has no deadline for its decision. Earlier in the month, however, the en banc Ninth Circuit, ruling in a different ATCA claims case that had the U.S. itself as one of the defendants, ignored the government’s request to revisit either precedents or an analysis of the statute that have led many courts to permit these claims to go forward. ATCA provides that “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.” In the early June decision, the Ninth Circuit affirmed a judgment against Francisco Sosa, a former Mexican policeman hired in 1990 by U.S. Drug Enforcement Administration agents to help kidnap Dr. Humberto Alvarez-Machain and bring him to the U.S. Dr. Alvarez-Machain, wanted in the kidnapping and killing of a DEA agent in 1985, was later tried and acquitted. He then sued Sosa, the U.S., and DEA agents under ATCA and the Federal Tort Claims Act. The court upheld the judgment against Sosa, ruling that the “unilateral, nonconsensual, extraterritorial arrest and detention of Dr. Alvarez-Machain were arbitrary and in violation of the law of nations” under ATCA. Implications for Unocal The decision has “enormous” implications for the Unocal case and all cases against corporations under the statute, says Paul Hoffman of Schonbrun DeSimone Seplow Harris & Hoffman of Venice, California. Hoffman is counsel to Alvarez and, with the Center for Constitutional Rights, also represents the citizens of Myanmar who are suing Unocal. In the Alvarez case, he explains, the Justice Department pressed the same argument as in Unocal: that the act does not apply to claims brought by aliens for actions occurring in other countries. And, says Hoffman: “No judge on the en banc court bought that.” Sosa’s counsel, Carter Phillips of Chicago’s Sidley Austin Brown & Wood, says he sees “no sentiment” on the court for revisiting any of its Alien Tort Claims Act cases. Phillips, who filed an amicus brief for the U.S. Chamber of Commerce and other business groups in the Unocal case, predicted that it will be fought over what standard should be applied to the claims against the company, not over the question of whether the claims could be brought in the first place. The latter question is the more important one, says Edwin Woodsome of Washington’s Howrey Simon Arnold & White, counsel to Unocal. “Can any lawsuit be brought under the act?” he asks. “The United States has taken a position, particularly in the Unocal case, and as well in other cases, that the ATCA does not provide a substantive cause of action, but only confers jurisdiction. The court in Alvarez didn’t spend much time on that issue.” Unocal was sued in 1996 by Burmese villagers who claim that they and their families were assaulted, raped, tortured, and forced into labor by the Myanmar military, which provided security and other services for the construction of an oil pipeline by Unocal. The suit was the first against a corporation under the act. A Ninth Circuit panel last year held that Unocal could be liable under the law for aiding and abetting the military in forced labor, murder, and rape. A version of this story originally appeared in The National Law Journal, a sibling publication of Corporate Counsel and a part of American Lawyer Media.

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