Jurisdiction (of every shape and kind), Merits, and Kiobel

SCOTUS at long last decided Kiobel v. Royal Dutch Petroleum on Wednesday, unanimously rejecting the claim under the Alien Tort Statute. Five justices (via the Chief) went with a no-extraterrotriality approach, while four justices (Justice Breyer for Ginsburg, Sotomayor, and Kagan) urged a more-precise understanding of the ATS as a jurisdictional grant. Importantly for my interests, the Court as a whole tries (and more or less succeeds) in continuing the sharp distinction between merits and jurisdiction under ATS first drawn in Sosa v. Alvarez-Machain, which should apply more broadly and generally.

The majority begins with Sosa and the notion that the ATS is "strictly jurisdictional," that it does not regulate conduct or afford relief, and that it is the federal courts recognizing the cause of action. Awesome.

But then the majority refers repeatedly to actions "brought under" the ATS, a term typically applied to the substantive law rather than the jurisdictional grant (e.g., an "action brought under Title VII" or "an action brought under the Sherman Act"). Further, the presumption of extraterritoriality, which the majority relies on, fits oddly here, since the ATS itself is only granting jurisdiction; extraterritoriality and the presumption against it ordinarily concerns the reach of the applicable substantive law created by a legislature.

The answer, I think, comes on p. 8 of the majority slip opinion, which says the following:

The question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provide by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.

In other words, federal courts' authority to recognize causes of action is granted by Congress through the ATS; the courts do not have the inherent authority to create common law causes of action (the way a state court might). Stated differently, the ATS is a jurisdictional grant in two respects: It grants courts adjudicative jurisdiction to hear and resolve certain cases and it grants them prescriptive jurisdiction to prescribe substantive rules of conduct for certain transactions or occurrences. But the latter is limited to causes of action within the scope of the statutory grant itself. Hence the statutory extraterritoriality analysis--if the ATS does not have extra-territorial application (as the Court concludes), then neither can the cause of action created by the courts pursuant to the delegation in the ATS. Thus, the substantive cause of action the court could create under the ATS fails here because the conduct occurred overseas and involved foreign nationals--which sounds like a 12(b)(6) merits dismissal.

Justice Breyer's concurrence uses the word "jurisdiction" (or "jurisdictional") a bit loosely for my taste, so it's hard to know exactly what he is talking about. On pp. 1 and 7 of the slip op., Breyer argues that the statute "provides jurisdiction" (or that he would "find jurisdiction") where: 1) an alleged tort occurs on American soil; 2) the defendant is an American national; or 3) the defendant's conduct substantially and adversely affects an important national interest, including an interest in not becoming a safe harbor for pirates (or their modern equivalent).

The problem is that it is not clear what Breyer means by "jurisdiction" there. Does he mean adjudicative jurisdiction? If so, the third prong (and perhaps the first) bleeds over into the merits of the claim. Whether the defendant's conduct affects a national interest, like whether conduct affects interstate commerce, looks at the real-world conduct itself and thus (at least on my preferred model) should not have anything to do with the court's adjudicative authority. Alternatively, this framing is less problematic if he means, like the majority, prescriptive jurisdiction. That is, the only causes of action a federal court can recognize and attach liability to are those that meet those three elements. I can live with that as a limitation on the court's prescriptive authority and thus on the substance of any claim. But I still would suggest that it is better to describe that as a limitation on the available court-recognized cause of action rather on jurisdiction.