On May 27, Judge Scheindlin (S.D.N.Y.) denied a motion by defendants for certification of interlocutory appeal in the South African apartheid litigation. (In re South African apartheid litigation, slip op., 2009 WL 1505163 (S.D.N.Y. May 27, 2009).)
Less than two months ago, Judge Scheindlin ruled that class action plaintiffs – victims of the apartheid regime in South Africa – could move forward with their Alien Tort Statute claim that the corporate defendants – including automakers, IT companies, and banks – committed “a tort…in violation of the law of nations” by aiding and abetting apartheid. The defendants sought interlocutory appeal (appeal before a final judgment is entered in the case) on three issues: (1) case-specific deference, (2) the mens rea requirement for the tort of aiding and abetting an international law crime, and (3) the vicarious liability standard under federal common law.
“Case-specific deference” harkens back to the Supreme Court’s landmark ATS decision, Sosa v. Alvarez-Machain, which held that federal courts have common law authority to recognize new torts under international law. In a footnote, the Court sought to cabin this authority: “[A] possible limitation [on ATS claims]…is a policy of case-specific deference to the political branches. For example, there are now pending in Federal District Court several class actions seeking damages from various corporations alleged to have participated in, or abetted, the regime of apartheid that formerly controlled South Africa…. In such cases, there is a strong argument that federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy.”
The footnote is unusual because it mentions (and suggests an outcome in) ongoing litigation in the federal courts. However, despite the expressed view of the U.S. and South African governments that the apartheid class action should be dismissed, the footnote was not enough to deter Judge Scheindlin’s April 8 decision that allowed the aiding and abetting claims to move forward. And in her recent denial of certification for interlocutory appeal, she reasoned that the requirements for certification were not met because, among other reasons, there was no “substantial ground for difference of opinion” on what case-specific deference entails.
The defendants argued that “[i]f…the South African and United States Governments state that this lawsuit is contrary to their foreign policy interests, it is not the place of the judiciary to parse that rationale to assess the validity of that assertion.” Judge Scheindlin reasoned that this “vastly exaggerate[d] the level of deference that is due” and explained that what the Supreme Court called “serious weight” was “a far cry from absolute deference.”
There is, however, room for serious disagreement on this point. When the Sosa Court, in its footnote, referred to giving “serious weight to the Executive Branch’s view,” it cited (with a Cf. signal) to a Supreme Court case called Republic of Austria v. Altmann and noted parenthetically Altmann’s discussion of an analogous policy of case-specific deference in cases involving foreign sovereign immunity. Prior to the passage of the Foreign Sovereign Immunities Act in 1976, federal courts entertaining civil actions against foreign governments would abide by “suggestions of immunity” filed by the State Department on a case-by-case basis. And in cases in which the State Department made no filing, courts would still consider granting immunity by reference to prior State Department decisions. See Republic of Mexico v. Hoffman, 324 U.S. 30, 34-35 (1945) (“Chief Justice Marshall introduced the practice, since followed in the federal courts, that their jurisdiction…will be surrendered on recognition, allowance and certification of the asserted immunity by the political branch of the government charged with the conduct of foreign affairs…. In the absence of recognition of the claimed immunity by the political branch of the government, the courts may decide for themselves whether all the requisites of immunity exist.”). The Supreme Court in Sosa was probably establishing (albeit in dicta) a similar policy to govern ATS cases.
Even if this does give rise to “substantial ground for difference of opinion,” the certification for interlocutory appeal in the apartheid litigation likely would have been denied anyway. Interlocutory appeal is justified only in “exceptional circumstances,” and Judge Scheindlin found that the defendants’ motion failed other requirements for certification.
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