Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)
SYLLABUS
OCTOBER TERM, 2003
SOSA V. ALVAREZ-MACHAIN
SUPREME COURT OF THE UNITED STATES
SOSA v. ALVAREZ-MACHAIN et al.
certiorari to the united states court of appeals for the ninth circuit
No. 03–339. Argued March 30, 2004—Decided June 29, 2004
The Drug Enforcement Administration (DEA) approved using petitioner Sosa and other Mexican nationals to abduct respondent Alvarez-Machain (Alvarez), also a Mexican national, from Mexico to stand trial in the United States for a DEA agent’s torture and murder. As relevant here, after his acquittal, Alvarez sued the United States for false arrest under the Federal Tort Claims Act (FTCA), which waives sovereign immunity in suits “for … personal injury … caused by the negligent or wrongful act or omission of any [Government] employee while acting within the scope of his office or employment,” 28 U. S. C. §1346(b)(1); and sued Sosa for violating the law of nations under the Alien Tort statute (ATS), a 1789 law giving district courts “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations … ,” §1350. The District Court dismissed the FTCA claim, but awarded Alvarez summary judgment and damages on the ATS claim. The Ninth Circuit affirmed the ATS judgment, but reversed the FTCA claim’s dismissal.
Held:
1. The FTCA’s exception to waiver of sovereign immunity for claims “arising in a foreign country,” 28 U. S. C. §2680(k), bars claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred. Pp. 4–17.
(a) The exception on its face seems plainly applicable to the facts of this case. Alvarez’s arrest was said to be “false,” and thus tortious, only because, and only to the extent that, it took place and endured in Mexico. Nonetheless, the Ninth Circuit allowed the action to proceed under what is known as the “headquarters doctrine,” concluding that, because Alvarez’s abduction was the direct result of wrongful planning and direction by DEA agents in California, his claim did not “aris[e] in” a foreign country. Because it will virtually always be possible to assert negligent activity occurring in the United States, such analysis must be viewed with skepticism. Two considerations confirm this Court’s skepticism and lead it to reject the headquarters doctrine. Pp. 4–7.
(b) The first consideration applies to cases like this one, where harm was arguably caused both by action in the foreign country and planning in the United States. Proximate cause is necessary to connect the domestic breach of duty with the action in the foreign country, for the headquarters’ behavior must be sufficiently close to the ultimate injury, and sufficiently important in producing it, to make it reasonable to follow liability back to that behavior. A proximate cause connection is not itself sufficient to bar the foreign country exception’s application, since a given proximate cause may not be the harm’s exclusive proximate cause. Here, for example, assuming the DEA officials’ direction was a proximate cause of the abduction, so were the actions of Sosa and others in Mexico. Thus, at most, recognition of additional domestic causation leaves an open question whether the exception applies to Alvarez’s claim. Pp. 8–9.
(c) The second consideration is rooted in the fact that the harm occurred on foreign soil. There is good reason to think that Congress understood a claim “arising in” a foreign country to be a claim for injury or harm occurring in that country. This was the common usage of “arising under” in contemporary state borrowing statutes used to determine which State’s limitations statute applied in cases with transjurisdictional facts. And such language was interpreted in tort cases in just the same way that the Court reads the FTCA today. Moreover, there is specific reason to believe that using “arising in” to refer to place of harm was central to the foreign country exception’s object. When the FTCA was passed, courts generally applied the law of the place where the injury occurred in tort cases, which would have been foreign law for a plaintiff injured in a foreign country. However, application of foreign substantive law was what Congress intended to avoid by the foreign country exception. Applying the headquarters doctrine would thus have thwarted the exception’s object by recasting foreign injury claims as claims not arising in a foreign country because of some domestic planning or negligence. Nor has the headquarters doctrine outgrown its tension with the exception. The traditional approach to choice of substantive tort law has lost favor, but many States still use that analysis. And, in at least some cases the Ninth Circuit’s approach would treat as arising at headquarters, even the later methodologies of choice point to the application of foreign law. There is also no merit to an argument that the headquarters doctrine should be permitted when a State’s choice of law approach would not apply the foreign law of the place of injury. Congress did not write the exception to apply when foreign law would be applied. Rather, the exception was written at a time when “arising in” meant where the harm occurred; and the odds are that Congress meant simply that when it used the phrase. Pp. 9–17.
2. Alvarez is not entitled to recover damages from Sosa under the ATS. Pp. 17–45.
(a) The limited, implicit sanction to entertain the handful of international law cum common law claims understood in 1789 is not authority to recognize the ATS right of action Alvarez asserts here. Contrary to Alvarez’s claim, the ATS is a jurisdictional statute creating no new causes of action. This does not mean, as Sosa contends, that the ATS was stillborn because any claim for relief required a further statute expressly authorizing adoption of causes of action. Rather, the reasonable inference from history and practice is that the ATS was intended to have practical effect the moment it became law, on the understanding that the common law would provide a cause of action for the modest number of international law violations thought to carry personal liability at the time: offenses against ambassadors, violation of safe conducts, and piracy. Sosa’s objections to this view are unpersuasive. Pp. 17–30.
(b) While it is correct to assume that the First Congress understood that district courts would recognize private causes of action for certain torts in violation of the law of nations and that no development of law in the last two centuries has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law, there are good reasons for a restrained conception of the discretion a federal court should exercise in considering such a new cause of action. In deriving a standard for assessing Alvarez’s particular claim, it suffices to look to the historical antecedents, which persuade this Court that federal courts should not recognize claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the 18th-century paradigms familiar when §1350 was enacted. Pp. 30–45.
(i) Several reasons argue for great caution in adapting the law of nations to private rights. First, the prevailing conception of the common law has changed since 1790. When §1350 was enacted, the accepted conception was that the common law was found or discovered, but now it is understood, in most cases where a court is asked to state or formulate a common law principle in a new context, as made or created. Hence, a judge deciding in reliance on an international norm will find a substantial element of discretionary judgment in the decision. Second, along with, and in part driven by, this conceptual development has come an equally significant rethinking of the federal courts’ role in making common law. In Erie R. Co. v. Tompkins, 304 U. S. 64, 78, this Court denied the existence of any federal “general” common law, which largely withdrew to havens of specialty, with the general practice being to look for legislative guidance before exercising innovative authority over substantive law. Third, a decision to create a private right of action is better left to legislative judgment in most cases. E.g., Correctional Services Corp. v. Malesko, 534 U. S. 61, 68. Fourth, the potential implications for the foreign relations of the United States of recognizing private causes of action for violating international law should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs. Fifth, this Court has no congressional mandate to seek out and define new and debatable violations of the law of nations, and modern indications of congressional understanding of the judicial role in the field have not affirmatively encouraged greater judicial creativity. Pp. 30–37.
(ii) The limit on judicial recognition adopted here is fatal to Alvarez’s claim. Alvarez contends that prohibition of arbitrary arrest has attained the status of binding customary international law and that his arrest was arbitrary because no applicable law authorized it. He thus invokes a general prohibition of arbitrary detention defined as officially sanctioned action exceeding positive authorization to detain under the domestic law of some government. However, he cites little authority that a rule so broad has the status of a binding customary norm today. He certainly cites nothing to justify the federal courts in taking his rule as the predicate for a federal lawsuit, for its implications would be breathtaking. It would create a cause of action for any seizure of an alien in violation of the Fourth Amendment, supplanting the actions under 42 U. S. C. §1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, that now provide damages for such violations. And it would create a federal action for arrests by state officers who simply exceed their authority under state law. Alvarez’s failure to marshal support for his rule is underscored by the Restatement (Third) of Foreign Relations Law of the United States, which refers to prolonged arbitrary detention, not relatively brief detention in excess of positive authority. Whatever may be said for his broad principle, it expresses an aspiration exceeding any binding customary rule with the specificity this Court requires. Pp. 38–45.
331 F. 3d 604, reversed.
Souter, J., delivered the opinion of the Court, Parts I and III of which were unanimous, Part II of which was joined by Rehnquist, C. J., and Stevens, O’Connor, Scalia, Kennedy, and Thomas, JJ., and Part IV of which was joined by Stevens, O’Connor, Kennedy, Ginsburg, and Breyer, JJ. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Rehnquist, C. J., and Thomas, J., joined. Ginsburg, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer, J., joined. Breyer, J., filed an opinion concurring in part and concurring in the judgment.
Together with No. 03–485, United States v. Alvarez-Machain et al., also on certiorari to the same court.
OPINION OF THE COURT
SOSA V. ALVAREZ-MACHAIN
542 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
NOS. 03-339 AND 03-485
JOSE FRANCISCO SOSA, PETITIONER 03–339 v. HUMBERTO ALVAREZ-MACHAIN et al. UNITED STATES, PETITIONER 03–485 v. HUMBERTO ALVAREZ-MACHAIN et al. on writs of certiorari to the united states court of appeals for the ninth circuit [June 29, 2004] Justice Souter delivered the opinion of the Court. The two issues are whether respondent Alvarez-Machain’s allegation that the Drug Enforcement Administration instigated his abduction from Mexico for criminal trial in the United States supports a claim against the Government under the Federal Tort Claims Act (FTCA or Act), 28 U. S. C. §1346(b)(1), §§2671–2680, and whether he may recover under the Alien Tort Statute (ATS), 28 U. S. C. §1350. We hold that he is not entitled to a remedy under either statute. I We have considered the underlying facts before, United States v. Alvarez-Machain, 504 U. S. 655 (1992). In 1985, an agent of the Drug Enforcement Administration (DEA), Enrique Camarena-Salazar, was captured on assignment in Mexico and taken to a house in Guadalajara, where he was tortured over the course of a 2-day interrogation, then murdered. Based in part on eyewitness testimony, DEA officials in the United States came to believe that respondent Humberto Alvarez-Machain (Alvarez), a Mexican physician, was present at the house and acted to prolong the agent’s life in order to extend the interrogation and torture. Id., at 657. In 1990, a federal grand jury indicted Alvarez for the torture and murder of Camarena-Salazar, and the United States District Court for the Central District of California issued a warrant for his arrest. 331 F. 3d 604, 609 (CA9 2003) (en banc). The DEA asked the Mexican Government for help in getting Alvarez into the United States, but when the requests and negotiations proved fruitless, the DEA approved a plan to hire Mexican nationals to seize Alvarez and bring him to the United States for trial. As so planned, a group of Mexicans, including petitioner Jose Francisco Sosa, abducted Alvarez from his house, held him overnight in a motel, and brought him by private plane to El Paso, Texas, where he was arrested by federal officers. Ibid. Once in American custody, Alvarez moved to dismiss the indictment on the ground that his seizure was “outrageous governmental conduct,” Alvarez-Machain, 504 U. S., at 658, and violated the extradition treaty between the United States and Mexico. The District Court agreed, the Ninth Circuit affirmed, and we reversed, id., at 670, holding that the fact of Alvarez’s forcible seizure did not affect the jurisdiction of a federal court. The case was tried in 1992, and ended at the close of the Government’s case, when the District Court granted Alvarez’s motion for a judgment of acquittal. In 1993, after returning to Mexico, Alvarez began the civil action before us here. He sued Sosa, Mexican citizen and DEA operative Antonio Garate-Bustamante, five unnamed Mexican civilians, the United States, and four DEA agents. 331 F. 3d, at 610. So far as it matters here, Alvarez sought damages from the United States under the FTCA, alleging false arrest, and from Sosa under the ATS, for a violation of the law of nations. The former statute authorizes suit “for … personal injury … caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U. S. C. §1346(b)(1). The latter provides
542 U. S. ____ (2004)
SOSA V. ALVAREZ-MACHAIN
542 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
NOS. 03-339 AND 03-485
JOSE FRANCISCO SOSA, PETITIONER 03–339 v. HUMBERTO ALVAREZ-MACHAIN et al. UNITED STATES, PETITIONER 03–485 v. HUMBERTO ALVAREZ-MACHAIN et al. on writs of certiorari to the united states court of appeals for the ninth circuit [June 29, 2004] Justice Scalia, with whom The Chief Justice and Justice Thomas join, concurring in part and concurring in the judgment. There is not much that I would add to the Court’s detailed opinion, and only one thing that I would subtract: its reservation of a discretionary power in the Federal Judiciary to create causes of action for the enforcement of international-law-based norms. Accordingly, I join Parts I, II, and III of the Court’s opinion in these consolidated cases. Although I agree with much in Part IV, I cannot join it because the judicial lawmaking role it invites would commit the Federal Judiciary to a task it is neither authorized nor suited to perform. I The question at hand is whether the Alien Tort Statute (ATS), 28 U. S. C. §1350, provides respondent Alvarez-Machain a cause of action to sue in federal court to recover money damages for violation of what is claimed to be a customary international law norm against arbitrary arrest and detention. The ATS provides that “[t]he 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.” Ibid. The challenge posed by this case is to ascertain (in the Court’s felicitous phrase) “the interaction between the ATS at the time of its enactment and the ambient law of the era.” Ante, at 19. I begin by describing the general principles that must guide our analysis. At the time of its enactment, the ATS provided a federal forum in which aliens could bring suit to recover for torts committed in “violation of the law of nations.” The law of nations that would have been applied in this federal forum was at the time part of the so-called general common law. See Young, Sorting out the Debate Over Customary International Law, 42 Va. J. Int’l L. 365, 374 (2002); Bradley & Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 824 (1997); Brief for Vikram Amar et al. as Amici Curiae 12–13. General common law was not federal law under the Supremacy Clause, which gave that effect only to the Constitution, the laws of the United States, and treaties. U. S. Const., Art VI, cl. 2. Federal and state courts adjudicating questions of general common law were not adjudicating questions of federal or state law, respectively—the general common law was neither. See generally Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1279–1285 (1996). The nonfederal nature of the law of nations explains this Court’s holding that it lacked jurisdiction in New York Life Ins. Co. v. Hendren, 92 U. S. 286 (1876), where it was asked to review a state-court decision regarding “the effect, under the general public law, of a state of sectional civil war upon [a] contract of life insurance.” Ibid. Although the case involved “the general laws of war, as recognized by the law of nations applicable to this case,” ibid., it involved no federal question. The Court concluded: “The case, … having been presented to the court below for decision upon principles of general law alone, and it nowhere appearing that the constitution, laws, treaties, or executive proclamations, of the United States were necessarily involved in the decision, we have no jurisdiction.” Id., at 287. This Court’s decision in Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), signaled the end of federal-court elaboration and application of the general common law. Erie repudiated the holding of Swift v. Tyson, 16 Pet. 1 (1842), that federal courts were free to “express our own opinion” upon “the principles established in the general commercial law.” Id., at 19, 18. After canvassing the many problems resulting from “the broad province accorded to the so-called ‘general law’ as to which federal courts exercised an independent judgment,” 304 U. S., at 75, the Erie Court extirpated that law with its famous declaration that “[t]here is no federal general common law.” Id., at 78. Erie affected the status of the law of nations in federal courts not merely by the implication of its holding but quite directly, since the question decided in Swift turned on the “law merchant,” then a subset of the law of nations. See Clark, supra, at 1280–1281. After the death of the old general common law in Erie came the birth of a new and different common law pronounced by federal courts. There developed a specifically federal common law (in the sense of judicially pronounced law) for a “few and restricted” areas in which “a federal rule of decision is necessary to protect uniquely federal interests, and those in which Congress has given the courts the power to develop substantive law.” Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 640 (1981) (internal quotation marks and citation omitted). Unlike the general common law that preceded it, however, federal common law was self-consciously “made” rather than “discovered,” by judges who sought to avoid falling under the sway of (in Holmes’s hyperbolic language) “[t]he fallacy and illusion” that there exists “a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute.” Black and White Taxicab & Transfer Co. v. Brown and Yellow Taxicab & Transfer Co., 276 U. S. 518, 533 (1928) (dissenting opinion). Because post-Erie federal common law is made, not discovered, federal courts must possess some federal-common-law-making authority before undertaking to craft it. “Federal courts, unlike state courts, are not general common-law courts and do not possess a general power to develop and apply their own rules of decision.” Milwaukee v. Illinois, 451 U. S. 304, 312 (1981). The general rule as formulated in Texas Industries, 451 U. S., at 640–641, is that “[t]he vesting of jurisdiction in the federal courts does not in and of itself give rise to authority to formulate federal common law.” This rule applies not only to applications of federal common law that would displace a state rule, but also to applications that simply create a private cause of action under a federal statute. Indeed, Texas Industries itself involved the petitioner’s unsuccessful request for an application of the latter sort—creation of a right of contribution to damages assessed under the antitrust laws. See id., at 639–646. See also Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77, 99 (1981) (declining to create a federal-common-law right of contribution to damages assessed under the Equal Pay Act and Title VII). The rule against finding a delegation of substantive lawmaking power in a grant of jurisdiction is subject to exceptions, some better established than others. The most firmly entrenched is admiralty law, derived from the grant of admiralty jurisdiction in Article III, §2, cl. 3, of the Constitution. In the exercise of that jurisdiction federal courts develop and apply a body of general maritime law, “the well-known and well-developed venerable law of the sea which arose from the custom among seafaring men.” R. M. S. Titanic, Inc. v. Haver, 171 F. 3d 943, 960 (CA4 1999) (Niemeyer, J.) (internal quotation marks omitted). At the other extreme is Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), which created a private damages cause of action against federal officials for violation of the Fourth Amendment. We have said that the authority to create this cause of action was derived from “our general jurisdiction to decide all cases ‘arising under the Constitution, laws, or treaties of the United States.’ ” Correctional Services Corp. v. Malesko, 534 U. S. 61, 66 (2001) (quoting 28 U. S. C. §1331). While Bivens stands, the ground supporting it has eroded. For the past 25 years, “we have consistently refused to extend Bivens liability to any new context.” Correctional Services Corp., supra, at 68. Bivens is “a relic of the heady days in which this Court assumed common-law powers to create causes of action.” 534 U. S., at 75 (Scalia, J., concurring). II With these general principles in mind, I turn to the question presented. The Court’s detailed exegesis of the ATS conclusively establishes that it is “a jurisdictional statute creating no new causes of action.” Ante, at 30. The Court provides a persuasive explanation of why respondent’s contrary interpretation, that “the ATS was intended not simply as a jurisdictional grant, but as authority for the creation of a new cause of action for torts in violation of international law,” is wrong. Ante, at 18. Indeed, the Court properly endorses the views of one scholar that this interpretation is “ ‘simply frivolous.’ ” Ibid. (quoting Casto, The Federal Courts’ Protective Jurisdiction Over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 479, 480 (1986)). These conclusions are alone enough to dispose of the present case in favor of petitioner Sosa. None of the exceptions to the general rule against finding substantive lawmaking power in a jurisdictional grant apply. Bivens provides perhaps the closest analogy. That is shaky authority at best, but at least it can be said that Bivens sought to enforce a command of our own law—the United States Constitution. In modern international human rights litigation of the sort that has proliferated since Filartiga v. Pena-Irala, 630 F.2d 876 (CA2 1980), a federal court must first create the underlying federal command. But “the fact that a rule has been recognized as [customary international law], by itself, is not an adequate basis for viewing that rule as part of federal common law.” Meltzer, Customary International Law, Foreign Affairs, and Federal Common Law, 42 Va. J. Int’l L. 513, 519 (2002). In Benthamite terms, creating a federal command (federal common law) out of “international norms,” and then constructing a cause of action to enforce that command through the purely jurisdictional grant of the ATS, is nonsense upon stilts. III The analysis in the Court’s opinion departs from my own in this respect: After concluding in Part III that “the ATS is a jurisdictional statute creating no new causes of action,” ante, at 30, the Court addresses at length in Part IV the “good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action” under the ATS. Ibid. (emphasis added). By framing the issue as one of “discretion,” the Court skips over the antecedent question of authority. This neglects the “lesson of Erie,” that “grants of jurisdiction alone” (which the Court has acknowledged the ATS to be) “are not themselves grants of law-making authority.” Meltzer, supra, at 541. On this point, the Court observes only that no development between the enactment of the ATS (in 1789) and the birth of modern international human rights litigation under that statute (in 1980) “has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law.” Ante, at 30 (emphasis added). This turns our jurisprudence regarding federal common law on its head. The question is not what case or congressional action prevents federal courts from applying the law of nations as part of the general common law; it is what authorizes that peculiar exception from Erie’s fundamental holding that a general common law does not exist. The Court would apparently find authorization in the understanding of the Congress that enacted the ATS, that “district courts would recognize private causes of action for certain torts in violation of the law of nations.” Ante, at 30. But as discussed above, that understanding rested upon a notion of general common law that has been repudiated by Erie. The Court recognizes that Erie was a “watershed” decision heralding an avulsive change, wrought by “conceptual development in understanding common law … [and accompanied by an] equally significant rethinking of the role of the federal courts in making it.” Ante, at 31–32. The Court’s analysis, however, does not follow through on this insight, interchangeably using the unadorned phrase “common law” in Parts III and IV to refer to pre-Erie general common law and post-Erie federal common law. This lapse is crucial, because the creation of post-Erie federal common law is rooted in a positivist mindset utterly foreign to the American common-law tradition of the late 18th century. Post-Erie federal common lawmaking (all that is left to the federal courts) is so far removed from that general-common-law adjudication which applied the “law of nations” that it would be anachronistic to find authorization to do the former in a statutory grant of jurisdiction that was thought to enable the latter.*
OPINION OF BREYER, J.
SOSA V. ALVAREZ-MACHAIN
542 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
NOS. 03-339 AND 03-485
JOSE FRANCISCO SOSA, PETITIONER 03–339 v. HUMBERTO ALVAREZ-MACHAIN et al. UNITED STATES, PETITIONER 03–485 v. HUMBERTO ALVAREZ-MACHAIN et al. on writs of certiorari to the united states court of appeals for the ninth circuit [June 29, 2004] Justice Breyer, concurring in part and concurring in the judgment. I join Justice Ginsburg’s concurrence and join the Court’s opinion in respect to the Alien Tort Statute (ATS) claim. The Court says that to qualify for recognition under the ATS a norm of international law must have a content as definite as, and an acceptance as widespread as, those that characterized 18th-century international norms prohibiting piracy. Ante, at 38. The norm must extend liability to the type of perpetrator (e.g., a private actor) the plaintiff seeks to sue. Ante, at 38, n. 20. And Congress can make clear that courts should not recognize any such norm, through a direct or indirect command or by occupying the field. See ante, at 37. The Court also suggests that principles of exhaustion might apply, and that courts should give “serious weight” to the Executive Branch’s view of the impact on foreign policy that permitting an ATS suit will likely have in a given case or type of case. Ante, at 38–39, n. 21. I believe all of these conditions are important. I would add one further consideration. Since enforcement of an international norm by one nation’s courts implies that other nations’ courts may do the same, I would ask whether the exercise of jurisdiction under the ATS is consistent with those notions of comity that lead each nation to respect the sovereign rights of other nations by limiting the reach of its laws and their enforcement. In applying those principles, courts help assure that “the potentially conflicting laws of different nations” will “work together in harmony,” a matter of increasing importance in an ever more interdependent world. F. Hoffmann-La Roche Ltd. v. Empagran S. A., ante, at _ (slip. op., at 8); cf. Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804). Such consideration is necessary to ensure that ATS litigation does not undermine the very harmony that it was intended to promote. See ante, 20–23. These comity concerns normally do not arise (or at least are mitigated) if the conduct in question takes place in the country that provides the cause of action or if that conduct involves that country’s own national—where, say, an American assaults a foreign diplomat and the diplomat brings suit in an American court. See Restatement (Third) of Foreign Relations Law of the United States §§402(1), (2) (1986) (hereinafter Restatement) (describing traditional bases of territorial and nationality jurisdiction). They do arise, however, when foreign persons injured abroad bring suit in the United States under the ATS, asking the courts to recognize a claim that a certain kind of foreign conduct violates an international norm. Since different courts in different nations will not necessarily apply even similar substantive laws similarly, workable harmony, in practice, depends upon more than substantive uniformity among the laws of those nations. That is to say, substantive uniformity does not automatically mean that universal jurisdiction is appropriate. Thus, in the 18th century, nations reached consensus not only on the substantive principle that acts of piracy were universally wrong but also on the jurisdictional principle that any nation that found a pirate could prosecute him. See, e.g., United States v. Smith, 5 Wheat. 153, 162 (1820) (referring to “the general practice of all nations in punishing all persons, whether natives or foreigners, who have committed [piracy] against any persons whatsoever, with whom they are in amity”). Today international law will sometimes similarly reflect not only substantive agreement as to certain universally condemned behavior but also procedural agreement that universal jurisdiction exists to prosecute a subset of that behavior. See Restatement §404, and Comment a; International Law Association, Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences 2 (2000). That subset includes torture, genocide, crimes against humanity, and war crimes. See id., at 5–8; see also, e.g., Prosecutor v. Furundzija, Case No. IT–95–17/1–T, ¶ ;¶ ;155–156 (International Tribunal for Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in Territory of Former Yugoslavia since 1991, Dec. 10, 1998); Attorney Gen. of Israel v. Eichmann, 36 I. L. R. 277 (Sup. Ct. Israel 1962). The fact that this procedural consensus exists suggests that recognition of universal jurisdiction in respect to a limited set of norms is consistent with principles of international comity. That is, allowing every nation’s courts to adjudicate foreign conduct involving foreign parties in such cases will not significantly threaten the practical harmony that comity principles seek to protect. That consensus concerns criminal jurisdiction, but consensus as to universal criminal jurisdiction itself suggests that universal tort jurisdiction would be no more threatening. Cf. Restatement §404, Comment b. That is because the criminal courts of many nations combine civil and criminal proceedings, allowing those injured by criminal conduct to be represented, and to recover damages, in the criminal proceeding itself. Brief for European Commission as Amicus Curiae 21, n. 48 (citing 3 Y. Donzallaz, La Convention de Lugano du 16 septembre 1998 concernant la competence judiciaire et l’execution des decisions en matiere civile et commerciale, ¶ ;¶ ;5203–5272 (1998); EC Council Regulation Art. 5, §4, 44/2001, 2001 O. J. (L 12/1) (Jan. 16, 2001)). Thus, universal criminal jurisdiction necessarily contemplates a significant degree of civil tort recovery as well. Taking these matters into account, as I believe courts should, I can find no similar procedural consensus supporting the exercise of jurisdiction in this case. That lack of consensus provides additional support for the Court’s conclusion that the ATS does not recognize the claim at issue here—where the underlying substantive claim concerns arbitrary arrest, outside the United States, of a citizen of one foreign country by another.
OPINION OF GINSBURG, J.
SOSA V. ALVAREZ-MACHAIN
542 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
NOS. 03-339 AND 03-485
JOSE FRANCISCO SOSA, PETITIONER 03–339 v. HUMBERTO ALVAREZ-MACHAIN et al. UNITED STATES, PETITIONER 03–485 v. HUMBERTO ALVAREZ-MACHAIN et al. on writs of certiorari to the united states court of appeals for the ninth circuit [June 29, 2004] Justice Ginsburg, with whom Justice Breyer joins, concurring in part and concurring in the judgment. I join in full the Court’s disposition of Alvarez’s claim pursuant to 28 U. S. C. §1350. See ante, at 17–45. As to Alvarez’s Federal Tort Claims Act (FTCA or Act) claim, see ante, at 4–17, although I agree with the Court’s result and much of its reasoning, I take a different path and would adopt a different construction of 28 U. S. C. §2680(k). Alvarez’s case against the Government does not call for any comparison of old versus newer choice-of-law methodologies. See ante, at 13–15. See generally Kay, Theory into Practice: Choice of Law in the Courts, 34 Mercer L. Rev. 521, 525–584 (1983). In particular, the Court’s discussion of developments in choice of law after the FTCA’s enactment hardly illuminates the meaning of that statute, and risks giving undue prominence to a jurisdiction-selecting approach the vast majority of States have long abandoned. See Symeonides, Choice of Law in the American Courts in 2002: Sixteenth Annual Survey, 51 Am. J. Comp. L. 1, 5–6 (2003) (lex loci delicti rule has been abandoned in 42 States). I The FTCA renders the United States liable for tort claims “in the same manner and to the same extent as a private individual under like circumstances.” 28 U. S. C. §2674. The Act gives federal district courts “exclusive jurisdiction of civil actions on claims against the United States, for money damages … for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” §1346(b)(1). Congress included in the FTCA a series of exceptions to that sovereign-immunity waiver. Relevant to this case, the Act expressly excepts “[a]ny claim arising in a foreign country.” §2680(k). I agree with the Court, see ante, at 4–17, that this provision, the foreign-country exception, applies here, and bars Alvarez’s tort claim against the United States. But I would read the words “arising in,” as they appear in §2680(k), to signal “place where the act or omission occurred,” §1346(b)(1), not “place of injury,” ante, at 12, 16–17, and n. 9.[Footnote 1] A On its face, the foreign-country exception appears to cover this case. See ante, at 4–5. Alvarez’s suit is predicated on an arrest in Mexico alleged to be “false” only because it occurred there. Sosa’s conduct in Mexico, implicating questions of Mexican law, is, as the Court notes, “the kernel” of Alvarez’s claim. Ante, at 5. Once Alvarez was inside United States borders, the Ninth Circuit observed, no activity regarding his detention was tortious. See 331 F. 3d 604, 636–637 (2003). Government liability to Alvarez, as analyzed by the Court of Appeals, rested solely upon a false-arrest claim. Id., at 640–641. Just as Alvarez’s arrest was “false,” and thus tortious, only because, and only to the extent that, it took place and endured in Mexico, so damages accrued only while the alleged wrongful conduct continued abroad. Id., at 636–637. Critical in the Ninth Circuit’s view, “DEA agents had no authority under federal law to execute an extraterritorial arrest of a suspect indicted in federal court in Los Angeles.” Id., at 640; see ante, at 5, n. 1. See also Fermino v. Fedco, Inc., 7 Cal. 4th 701, 715, 872 P. 2d 559, 567 (1994) (defining as tortious “the nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short” (emphasis added and internal quotation marks omitted)); App. to Pet. for Cert. 184a (same). Once Alvarez arrived in El Paso, Texas, “the actions of domestic law enforcement set in motion a supervening prosecutorial mechanism which met all of the procedural requirements of federal due process.” 331 F. 3d, at 637; see ante, at 5, n. 1. Accepting, as the Ninth Circuit did, that no tortious act occurred once Alvarez was within United States borders, the Government’s liability on Alvarez’s claim for false arrest necessarily depended on the foreign location of the arrest and implicated foreign law. While the Court of Appeals focused on whether United States law furnished authority to seize Alvarez in Mexican territory, see 331 F. 3d, at 626–631, Mexican law equally could have provided—or denied—authority for such an arrest. Had Sosa and the arrest team been Mexican law enforcement officers, authorized by Mexican law to arrest Alvarez and to hand him over to United States authorities, for example, no false-arrest claim would have been tenable. Similarly, there would have been no viable false-arrest claim if Mexican law authorized a citizen’s arrest in the circumstances presented here. Indeed, Mexican and Honduran agents seized other suspects indicted along with Alvarez, respectively in Mexico and Honduras; “Alvarez’s abduction was unique in that it involved neither the cooperation of local police nor the consent of a foreign government.” Id., at 623, n. 23. The interpretation of the FTCA adopted by the Ninth Circuit, in short, yielded liability based on acts occurring in Mexico that entangled questions of foreign law. Subjecting the United States to liability depending upon the law of a foreign sovereign, however, was the very result §2680(k)’s foreign-country exception aimed to exclude. See United States v. Spelar, 338 U. S. 217, 221 (1949). B I would construe the foreign-country exception, §2680(k), in harmony with the FTCA’s sovereign-immunity waiver, §1346(b), which refers to the place where the negligent or intentional act occurred. See Brief for United States in No. 03–485, p. 45 (urging that §2680(k) should be applied by looking to “where the prohibited act is committed”); id., at 46 (“the foreign country exception must be viewed together with [§]1346,” which points to “the law of the place where the [allegedly wrongful] act or omission occurred” (internal quotation marks omitted and emphasis deleted)). Interpretation of §2680(k) in the light of §1346, as the Government maintains, is grounded in this Court’s precedent. In construing §2680(k)’s reference to a “foreign country,” this Court has “draw[n] support from the language of §1346(b), the principal provision of the [FTCA].” Smith v. United States, 507 U. S. 197, 201 (1993) (internal quotation marks omitted). In Smith, the Court held that a wrongful-death action “based exclusively on acts or omissions occurring in Antarctica” was barred by the foreign-country exception. Id., at 198–199. Were it not, the Court noted, “§1346(b) would instruct courts to look to the law of a place that has no law [i.e., Antarctica] in order to determine the liability of the United States—surely a bizarre result.” Id., at 201–202 (footnote omitted). Thus, in Smith, the Court presumed that the place “where the act or omission occurred” for purposes of the sovereign-immunity waiver, §1346(b)(1), coincided with the place where the “claim ar[ose]” for purposes of the foreign-country exception, §2680(k). See also Beattie v. United States, 756 F. 2d 91, 122 (CADC 1984) (Scalia, J., dissenting) (“[A] claim ‘arises’ for purposes of §2680(k) where there occurs the alleged [standard-of-care] violation … (attributable to government action or inaction) nearest to the injury … .”); Sami v. United States, 617 F. 2d 755, 761–762 (CADC 1979) (looking to where “the act or omission complained of occurred” in applying §2680(k)). Harmonious construction of §§1346(b) and 2680(k) accords with Congress’ intent in enacting the foreign-country exception. Congress was “unwilling to subject the United States to liabilities depending upon the laws of a foreign power.” Spelar, 338 U. S., at 221. The legislative history of the FTCA suggests that Congress viewed cases in which the relevant act or omission occurred in a foreign country as entailing too great a risk of foreign-law application. Thus, Assistant Attorney General Francis M. Shea, in explaining the finally enacted version of the foreign-country exception to the House Committee on the Judiciary, emphasized that, when an act or omission occurred in a foreign country, §1346(b) would direct a court toward the law of that country: “Since liability is to be determined by the law of the situs of the wrongful act or omission it is wise to restrict the bill to claims arising in this country.” Hearings on H. R. 5373 et al. before the House Committee on the Judiciary, 77th Cong., 2d Sess., 35 (1942) (emphasis added); see ante, at 12.[Footnote 2] In the enacting Congress’ view, it thus appears, §§1346(b) and 2680(k) were aligned so as to block the United States’ waiver of sovereign immunity when the relevant act or omission took place overseas. See supra, at 2–3, n. 1. True, the Court has read renvoi into §1346(b)(1)’s words “in accordance with the law of.” See Richards v. United States, 369 U. S. 1, 11 (1962) (“the [FTCA] … requires application of the whole law of the State where the act or omission occurred” (emphasis added)).[Footnote 3] That, however, is no reason to resist defining the place where a claim arises for §2680(k) purposes to mean the place where the liability-creating act or omission occurred, with no renvoi elsewhere. It is one thing to apply renvoi to determine which State, within the United States, supplies the governing law, quite another to suppose that Congress meant United States courts to explore what choice of law a foreign court would make.[Footnote 4] In 1948, when the FTCA was enacted, it is also true, Congress reasonably might have anticipated that the then prevailing choice-of-law methodology, reflected in the Restatement (First) of Conflicts, would lead mechanically to the law of the place of injury. See Restatement (First) of Conflicts §377 (1934) (“The place of wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place.”); Richards, 369 U. S., at 11–12 (“The general conflict-of-laws rule, followed by a vast majority of the States, [wa]s to apply the law of the place of injury to the substantive rights of the parties.” (footnote omitted)); ante, at 10–11, 13, n. 5 (same). Generally, albeit not always, the place where the negligent or intentional act or omission takes place coincides with the place of injury.[Footnote 5] Looking to the whole law of the State where the wrongful “act or omission occurred” would therefore ordinarily lead to application of that State’s own law. But cf. ante, at 12, 16–17 (adopting a place-of-injury rule for §2680(k)). II The Ninth Circuit concluded that the foreign-country exception did not bar Alvarez’s false-arrest claim because that claim “involve[d] federal employees working from offices in the United States to guide and supervise actions in other countries.” 331 F. 3d, at 638. In so holding, the Court of Appeals applied a “ ‘headquarters doctrine,’ ” whereby “a claim can still proceed … if harm occurring in a foreign country was proximately caused by acts in the United States.” Ibid. There is good reason to resist the headquarters doctrine described and relied upon by the Ninth Circuit. The Court of Appeals’ employment of that doctrine renders the FTCA’s foreign-country exception inapplicable whenever some authorization, support, or planning takes place in the United States. But “it will virtually always be possible to assert that the negligent [or intentional] activity that injured the plaintiff was the consequence of faulty training, selection or supervision—or even less than that, lack of careful training, selection or supervision—in the United States.” Beattie, 756 F. 2d, at 119 (Scalia, J., dissenting); see ante, at 7 (same). Hence the headquarters doctrine, which considers whether steps toward the commission of the tort occurred within the United States, risks swallowing up the foreign-country exception. Furthermore, the Court of Appeals failed to address the choice-of-law question implicated by both §§1346(b) and 2680(k) whenever tortious acts are committed in multiple states. Both those provisions direct federal courts “in multistate tort actions, to look in the first instance to the law of the place where the acts of negligence [or the intentional tort] took place.” Richards, 369 U. S., at 10. In cases involving acts or omissions in several states, the question is which acts count. “Neither the text of the FTCA nor Richards provides any guidance … when the alleged acts or omissions occur in more than one state. Moreover, the legislative history of the FTCA sheds no light on this problem.” Gould Electronics Inc. v. United States, 220 F. 3d 169, 181 (CA3 2000); see Raflo v. United States, 157 F. Supp. 2d 1, 9 (DC 2001) (same). Courts of appeals have adopted varying approaches to this question. See Simon v. United States, 341 F. 3d 193, 202 (CA3 2003) (listing five different choice-of-law methodologies for §1346(b)(1)); Gould Electronics, 220 F. 3d, at 181–183 (same).[Footnote 6] Having canvassed those different approaches, Third Circuit Judge Becker concluded that “clarity is the most important virtue in crafting a rule by which [a federal court would] choose a jurisdiction.” Simon, 341 F. 3d, at 204. Eschewing “vague and overlapping” approaches that yielded “indeterminate” results, Judge Becker “appl[ied] [under §1346(b)(1)] the choice-of-law regime of the jurisdiction in which the last significant act or omission occurred. This has the salutary effect of avoiding the selection of a jurisdiction based on a completely incidental ‘last contact,’ while also avoiding the conjecture that [alternative] inquires often entail.” Ibid. I agree. A “last significant act or omission” rule applied under §2680(k) would close the door to the headquarters doctrine as applied by the Ninth Circuit in this case. By directing attention to the place where the last significant act or omission occurred, rather than to a United States location where some authorization, support, or planning may have taken place, the clear rule advanced by Judge Becker preserves §2680(k) as the genuine limitation Congress intended it to be. The “last significant act or omission” rule works in this case to identify Mexico, not California, as the place where the instant case arose. I would apply that rule here to hold that Alvarez’s tort claim for false arrest under the FTCA is barred under the foreign-country exception. Accordingly, I concur in the Court’s judgment and concur in Parts I, III, and IV of its opinion.