Akran Mohammed Ali, et al. v. Rumsfeld, et al., No. 07-5178 (D.C.Cir. June 2011) (consol), is the appeal of an action by non-U.S. residents or citizens captured, held, and allegedly tortured by U.S. milatary personnel.  This decision affirms the District Court’s grant of a motion to dismiss Alient Tort Statute (ATS), 28 U.S.C. sec 1350, and constitutional claims. 

The rulings here of interest to international commerical or business litigation (which includ claims asserting torts, even if not torture) include the following:

First, the Court of Appeals ruled that the ATS claims were properly restlyed as claims against the U.S. since the alleged infliction of torture and cruel, inhuman, and degrading treatment was “incidental to their legitimate employment duties.  The Court of Appeals felt bound by prior precent and rejected the argument that “[a]s a matter of law, torture can never fall with the scope of employment of the U.S. Secretary of Defense and high-ranking U.S. Army commanders”.

Second, the majority decision in the Court of Appeals rejects the argument that the ATS was intended as more than just a jurisdictional grant but, in addition, “as authority for the creation of a new cause of action for torts in violation of international law”.  The Court of Appeals’ majority reads the Supreme Court’s decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), as having clarified that the ATS is a jurisdictional statute only, “creating no new causes of action”.

Third, as a result, according to the majority, there is no exception to the Westfall Act, 28 U.S.C. sec. 2679.  That Act makes Federal Tort Claims Act remedies the exclusive ones and precludes “any other civil action or proceeding for money damages”.  The FTCA has an exhaustion of remedies requirement, so if it applied here, the plaintiffs’ claims here must be dismissed.  The majority opinion rejects the dissent’s assertion that Sosa “confirms that appellants may pursue a cause of action under section 1350 for deliberate torture perpetrated under color of official authority”. 

Fourth, the upshot of the majority’s decision, appears “ironic”, says the dissent:  “it is ironic that, under the majority’s approach, United States officials who torture a foreign national in a foreign country are not subject to suit in an action brought under section 1350, whereas foreign officials who commit official torture in a foreign country may be sued under section 1350″.