Ates v. Gülen, 2016 U.S. Dist. LEXIS 84685 (M.D. Penn. June 29, 2016), is one of the recent cases to examine the Alien Tort Statute (ATS) since the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013). (For a more in-depth analysis of Kiobel and its implications, please see our posting, “Extraterritoriality Becomes Focus of Kiobel Supreme Court; Are We Headed for Morrison II?” Likewise, for a more in-depth analysis of the ATS in general, please see our e-book, International Practice: Topics and Trends.) In Gülen, the Middle District of Pennsylvania addressed the threshold for displacement of the ATS’s presumption against extraterritoriality.
In December 2015, the plaintiffs Bunyamin Ates, Turgut Yildirim, and Murat Ozturk, all Turkish nationals, filed a complaint against Muhammed Fethulla Gülen and Does 1-50. The plaintiffs alleged, pursuant to the ATS, that the defendants had persecuted members of their religious organization in addition to arresting and detaining the plaintiffs arbitrarily. The plaintiffs also asserted counts of false imprisonment and civil conspiracy pursuant to Pennsylvania state law. Gülen moved to dismiss the complaint. For the reasons described below, the District Court granted Gülen’s motion.
The defendant, Gülen, is an influential Muslim cleric of Turkish origin with a substantial international online following. According to the plaintiffs’ complaint, in April 2009, Gülen instructed his followers, by means of an online video and two episodes of a Turkish television program, to misuse the Turkish legal system against the members of the Islamic Dogan Movement, which included the plaintiffs. Together, the speech and the episodes compared members of the Dogan Movement to the terrorist organization al-Qaeda and ultimately led to, inter alia, the persecution and the wrongful incarceration of the plaintiffs.
The Gülen court looked to how the various Circuit and District Court opinions have applied Kiobel to distill a set of rules against which it could apply the facts of Gülen’s case. Case law has generally established, and Kiobel affirmed, a presumption against extraterritoriality where the ATS is involved. In Gülen, the court notes that the scope of the ATS is “historically very narrow” and only applies when causes of action are based on “sufficiently definite norms of international law” (quoting Kiobel).
According to the court’s analysis of post-Kiobel case law, in order for a plaintiff’s complaint to allege sufficient facts to overcome the ATS’s presumption against extraterritoriality, a court must determine:
(1) the relevant conduct in the matter; (2) whether that conduct touches and concerns the United States; (3) whether the relevant conduct is sufficiently forceful to displace the presumption against extraterritoriality; and (4) whether that relevant conduct states a claim for a violation of the law of nations or aiding and abetting another person or group’s violation of the law of nations.
Gülen’s conduct was not sufficiently relevant “to overcome the ATS’s presumption against extraterritoriality.” Gülen’s speech offered, according to the court, only “circumstantial and tenuous allegations” of any connection between Gülen’s conduct in the United States and the conduct that violated the plaintiffs’ rights in Turkey. Particularly persuasive to the court was the plaintiffs’ inability to point to any specific part of the speech which “directly convey[ed] instructions” by the defendants and were not just “broad assertions.”
The court also examined whether Gülen’s conduct “touched and concerned” the territory of the United States. Even if Gülen’s online sermon and subsequent approval of the two television episodes amounted to “relevant conduct,” the court held, there was no evidence (outside of Gülen’s residence in Pennsylvania) that would allow the court to determine that the alleged conduct in Turkey “touched and concerned” the United States.
For support, the court pointed to the Third Circuit’s decision in Ben-Haim v. Neeman, 543 Fed. Appx. 152 (3d Cir. 2013), which reaffirmed the Kiobel holding that subject matter jurisdiction under the ATS is “very limited” and so does not apply where the conduct that forms the basis for a plaintiff’s ATS claim takes place entirely outside of the United States. Ben-Haim, however, was factually dissimilar from Gülen, and so the Gülen court looked for further support from the courts of other circuits and districts.
To that end, the court distinguished the facts in Gülen from those of Al Shimari v. CACI Premier Technology, Inc., 758 F.3d 516 (4th Cir. 2014), in which the Fourth Circuit found that the defendant’s conduct did in fact “touch and concern” the United States with sufficient force to displace the ATS’s presumption against extraterritoriality. The difference between Gülen and Al Shimari, according to the court, was that unlike in Al Shimari, the plaintiffs in Gülen were not alleging that the U.S. government had any “legal, contractual, or political” ties to Gülen, or even any connection to the United States or its interests in any way at all.
Furthermore, the court also distinguished Gülen from Sexual Minorities Uganda v. Lively, 960 F.Supp.2d 304 (D. Mass. 2013) and Krishanti v. Rajaratnam, 2014 U.S. Dist. LEXIS 58314 (D.N.J. 2014), two District Court cases in which the defendants’ alleged conduct was found sufficiently to “touch and concern” the United States enough to displace the presumption against extraterritoriality. Unlike both of those cases, where the defendants’ alleged conduct occurred “over an extended period of time, consisted of a number of acts, and was significantly more precisely alleged,” than in Gülen, the court found that the allegations of the plaintiffs in Gülen were largely pled in “conclusory terms” that did not sufficiently establish the causal connection between Gülen’s domestic actions and the conduct that occurred abroad.
Ultimately, the court dismissed the plaintiffs’ claims brought pursuant to the ATS for lack of subject matter jurisdiction. For further support, the court referred to the Supreme Court’s presumption against involving itself in “foreign policy” or “passing judgment on foreign decision-making.” Likewise, the court noted that were it to have ruled in the plaintiffs’ favor, it would have been tantamount to it declaring official acts of a non-U.S. sovereign performed within that sovereign’s territory as invalid, and therefore would have violated the act of state doctrine.
Special thanks to Mark Sanchez* for his assistance in creating this blog post.
*Not admitted to the practice of law