International Comity Run Amok

Late last year, a divided panel of the Ninth Circuit Court of Appeals issued its opinion in Mujica v. Airscan Inc., a human rights suit against two U.S. corporations for involvement in Colombia’s bombing of innocent civilians in 1998. While the complaint in Mujica alleged war crimes among other claims, the significance of the decision extends beyond human rights litigation to ordinary commercial cases.

The panel dismissed plaintiffs’ claims under the Torture Victim Protection Act (TVPA) because the TVPA creates a cause of action only against natural persons. See Mohamad v. Palestinian Authority. The panel dismissed plaintiffs’ claims under the Alien Tort Statute (ATS) because it found that the defendants’ U.S. nationality was not enough to displace the presumption against extraterritoriality under Kiobel v. Royal Dutch Petroleum Co., a reading of Kiobel that may be wrong but accords with the decisions of at least some other circuits. And the panel dismissed plaintiffs’ state-law claims “based on the doctrine of international comity.” As Roger Alford has noted, the panel’s abstention from deciding claims over which it clearly had alienage jurisdiction on the basis of international comity conflicts with binding Supreme Court and Ninth Circuit precedents, as well as the decisions of other circuits. Mujica represents a broad and unnecessary expansion of the grounds on which federal courts may choose not to exercise jurisdiction. 

There is nothing wrong with international comity as a principle. As I explain in a draft article, international comity is one of the foundations of U.S. foreign relations law and animates many important doctrines of American law. But the Ninth Circuit’s application of international comity as a doctrine of abstention goes far beyond what existing law permits. In Colorado River Water Conservation District v. United States, the Supreme Court noted that federal courts have a “virtually unflagging obligation” to exercise jurisdiction and that abstention may be justified only in “exceptional circumstances.” In Quackenbush v. Allstate Insurance Co., the Supreme Court further suggested that abstention is only appropriate when plaintiffs seek discretionary relief and not when plaintiffs seek damages as in Mujica.

A number of circuits have extended Colorado River abstention from state-court proceedings to foreign proceedings. (See Answers in Genesis of Kentucky, Inc. v. Creation Ministries intern., Ltd., p. 467; Royal and Sun Alliance Ins. Co. of Canada v. Century Intern. Arms, Inc., p. 95; Gross v. German Foundation Indus. Initiative, p. 393; AAR International, Inc. v. Nimelias Enterprises S.A., p. 518; Al-Abood ex rel Al-Abood v. El Shamari, p. 232.) But these circuits have strictly limited international comity abstention by insisting on two conditions: (1) the existence of a parallel foreign proceeding; and (2) a showing of “exceptional circumstances.” So has a prior decision of the Ninth Circuit, Neuchatel Swiss General Insurance Co. v. Lufthansa Airlines, which reversed a district court stay because of “the absence of ‘exceptional circumstances’ required by Colorado River to justify a district court’s refusal to exercise jurisdiction in deference to parallel proceedings in another jurisdiction.” Writing for the panel in Neuchatel, Judge Norris refused to apply Colorado River more expansively in an international context than in a domestic context. “We reject the notion that a federal court owes greater deference to foreign courts than to our own state courts.”

Rather than follow its own precedent, the Ninth Circuit panel in Mujica took as its starting point the Eleventh Circuit’s decision in Ungaro-Benages v. Dresdner Bank AG. In Ungaro-Benages, the Eleventh Circuit invoked the “doctrine of international comity” to dismiss claims for stolen property against two German banks, despite the absence of any parallel foreign proceeding, in deference to the Foundation Agreement process that the United States and Germany negotiated as the exclusive forum for the resolution of Nazi-era claims. Rather than requiring “exceptional circumstances” to justify abstention, the Eleventh Circuit simply weighed the U.S. government interests, the foreign government interests, and the adequacy of the foreign forum. Over the past decade Ungaro-Benages has not met with approval. On nearly identical facts, the Third Circuit subsequently rejected the Eleventh Circuit’s position as inconsistent with Colorado River (see Gross, pp. 393–94), and the Eleventh Circuit has since limited Ungaro-Benages to “rare (indeed often calamitous) cases in which powerful diplomatic interests of the United States and foreign sovereigns aligned in supporting dismissal.”

But Mujica did not treat international comity abstention as a doctrine only for rare cases. Having properly distinguished prescriptive and adjudicative comity (on the distinction, see my article mentioned above), the panel oddly engrafted the prescriptive comity factors from Section 403 of the Restatement (Third) of Foreign Relations Law onto the adjudicative comity framework of Ungaro-Benages. The result is a highly manipulable balancing test, comprising 13 factors by my count, requiring no showing of exceptional circumstances, and permitting dismissal even in the absence of a parallel foreign proceeding. The Mujica panel seems to have been persuaded by Colombia’s brief demarche that the case “may affect the relations between Colombia and the US” and a subsequent Statement of Interest by the United States that the case “will have an adverse impact on the foreign policy interests of the United States.” See Mujica, at 611, 609. But such statements are a far cry from the governmental interests expressed in Ungaro-Benages, which were reflected in a carefully negotiated international agreement. Moreover, deference to State Department suggestions that specific lawsuits should be dismissed on foreign policy grounds raises serious separation of powers concerns.

The Ninth Circuit’s new doctrine of international comity abstention not just broad—it is also unnecessary. Federal courts have a well-developed tool in the doctrine of forum non conveniens with which to dispose of cases that should properly be heard abroad. And, as Roger Alford noted, if the district court retained jurisdiction and reached the merits in Mujica, it might well decide under California’s conflict-of-laws rules that Colombian law governed rather than that of California. It is doctrines like forum non conveniens and the conflict of laws—each rooted in international comity—that should guide the decisions in cases like Mujica, not a broad and uncertain doctrine of international abstention.

Given Mujica’s conflict with Supreme Court and Ninth Circuit precedents, as well as the decisions of other circuits, it is not surprising that plaintiffs have filed for rehearing and rehearing en banc. If the Ninth Circuit declines to grant rehearing, I would not be surprised to see the Supreme Court grant cert. 

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About the Author(s)

William S. Dodge

Martin Luther King, Jr. Professor of Law at the University of California, Davis, School of Law and Co-Reporter for the Restatement (Fourth) of Foreign Relations Law: Jurisdiction. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State.