The Road Beyond Kiobel: The Fifth Circuit's Decision in Adhikari v. Kellogg Brown & Root, Inc. and its Implications for the Alien Tort Statute

Abstract

On January 3, 2017, in Adhikari v. Kellogg Brown & Root, Inc., the U.S. Court of Appeals for the Fifth Circuit held that the Alien Tort Statute (“ATS”) did not provide jurisdiction for claims brought against a U.S. military contractor for torts committed in Iraq. In foreclosing plaintiffs’ claims, the Fifth Circuit held that the presumption against the ATS’s extraterritorial application barred claims for injuries occurring outside the United States’ territory. In so ruling, the court created a circuit split with the Fourth Circuit, which in Al Shimari v. CACI Premier Technology, Inc. held that the ATS provided jurisdiction for claims brought against a U.S. government contractor for torts committed in Iraq. This Comment argues that the Fifth Circuit adopted a restrictive approach to the meaning of the Supreme Court’s “touch and concern” language in Kiobel v. Royal Dutch Petroleum Co. and engaged in a rigid application of the Supreme Court’s “focus” test from Morrison v. National Australia Bank Ltd. The Fifth Circuit’s holding betrays the purpose of the ATS and is inconsistent with the Supreme Court’s ATS jurisprudence.