Nos. 14-777, 14-1011

IN THE

LILIANA MARIA CARDONA, et al. Petitioners,

v. CHIQUITA BRANDS INTERNATIONAL, INC., et al.,

Respondents.

DOES 1-144, et al. Petitioners,

v. CHIQUITA BRANDS INTERNATIONAL, INC., et al.,

Respondents.

On Petitions For A Writ Of Certiorari To The United States Court Of Appeals

For The Eleventh Circuit

SUPPLEMENTAL BRIEF OF RESPONDENTS

Jonathan M. Sperling COVINGTON & BURLING LLP The New York Times Building620 Eighth Avenue New York, NY 10018-1405 (212) 841-1000 April 2015

John E. Hall Counsel of Record James M. Garland Mark W. Mosier COVINGTON & BURLING LLP One CityCenter 850 Tenth Street, N.W. Washington, DC 20001-4956 jhall@cov.com (202) 662-6000

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TABLE OF CONTENTS

Page

SUPPLEMENTAL BRIEF OF RESPONDENTS ..... 1

I. Drummond Confirms Respondents’ Reading Of The Decision Below And Refutes Petitioners’ Allegation Of A Circuit Split ..................................................... 1

II. There Is No Basis To Grant, Vacate, And Remand ............................................................ 4

CONCLUSION ........................................................... 6

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Al Shimari v. CACI Premier Technology, Inc., 758 F.3d 516 (4th Cir. 2014) ...................................... 3

Baloco v. Drummond, No. 12-15268-BB, Order (Mar. 26, 2015) ........................................................................... 5

Doe v. Drummond Co., No. 13-15503, __ F.3d __, 2015 WL 1323122 (Mar. 25, 2015) .................................. passim

Mastafa v. Chevron Corp., 770 F.3d 170 (2d Cir. 2014) ....................................... 3

Wisniewski v. United States, 353 U.S. 901 (1957) .................................................... 4

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SUPPLEMENTAL BRIEF OF RESPONDENTS

Pursuant to this Court’s Rule 15.8, Respondents file this supplemental brief to address the recent decision of the U.S. Court of Appeals for the Eleventh Circuit in Doe v. Drummond Co., No. 13-15503, __ F.3d __, 2015 WL 1323122 (Mar. 25, 2015). The Doe Petitioners in Case No. 14-1011 filed a supplemental brief addressing Drummond on April 1, 2015.

Drummond rejects Petitioners’ reading of the Eleventh Circuit’s decision in this case, and shows that the circuit split Petitioners have alleged does not exist. Recognizing that their arguments for plenary review have been fatally undermined, the Doe Petitioners now ask this Court to grant certiorari, vacate the decision below, and remand for reconsideration (“GVR”) in light of Drummond. That request has no merit. Far from calling into question the result in this case, the Drummond panel emphasized that it was following – not contradicting or undermining – the decision below. In fact, the Drummond panel confronted “similar domestic conduct” to what is alleged here, and found “in light of [its] precedent” that such claims fail the very test that Petitioners have advocated and that the Eleventh Circuit has now adopted. 2015 WL 1323122, at *16 (citing the decision below).

I. Drummond Confirms Respondents’ Reading Of The Decision Below And Refutes Petitioners’ Allegation Of A Circuit Split.

The basis of Petitioners’ argument that certiorari is warranted has been their theory that

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“the decision below would eliminate all ATS claims where the ultimate abuses occur abroad regardless of their connection to the United States.” Reply Br. of Cardona Pet’rs at 7; see also id. at 1 (“[T]he panel majority below reached a legal conclusion that only the location of the injury matters.”); id. at 2 (“For the panel majority, the fact that Petitioners’ injuries were caused by human rights abuses ultimately completed on Colombian territory was the beginning and ending of its legal analysis.”). Respondents, by contrast, have explained that the decision below determined only that there was no jurisdiction under the facts of this case, and broke no significant new ground concerning the extraterritorial application of the Alien Tort Statute (“ATS”). Br. in Opp. at 10-12.

The Eleventh Circuit’s recent decision in Drummond conclusively resolves that dispute in Respondents’ favor. Far from reading the decision below as embracing the categorical rule that Petitioners contend, the Drummond panel concluded that the decision below “leave[s] unanswered a considerable number of questions as to this circuit’s interpretation and application of Kiobel’s operative language.” 2015 WL 1323122, at *3; see also id. at *10 (“The majority opinion in Cardona offers only limited guidance as to the interpretation of Kiobel and the application of the presumption against extraterritoriality.”).

Drummond went on to reject the rule that Petitioners assert was established as the law of the Eleventh Circuit by the decision below. The court of appeals “decline[d] to construe our precedent” – i.e., the decision in this case – “as finding that facts other than the extraterritorial or domestic location of the

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underlying conduct are irrelevant.” Id. at *11 n.24. Instead, it expressly adopted Petitioners’ preferred approach of considering the “location where the defendant is alleged to engage in conduct that directly or secondarily results in violations of international law within the meaning of the ATS.” Id. at *11 (emphasis added) (citing Mastafa v. Chevron Corp., 770 F.3d 170, 185, 195 (2d Cir. 2014)).1

Notably, the Eleventh Circuit reached this result by looking to “recent decisions from the Fourth, Second, and Ninth Circuits,” which “offer[ed] guidance in understanding our own precedent and in answering questions that our two decisions do not address.” Id. at *6. In holding that “the [extraterritoriality] inquiry may indeed extend to the place of decision-making,” the panel emphasized that its approach is “in accord with the other circuit courts of appeals to consider this question.” Id. at *15. It then cited favorably the Second Circuit’s decision in Mastafa, the Fourth Circuit’s decision in Al Shimari v. CACI Premier Technology, Inc., 758 F.3d 516 (4th Cir. 2014), and the Ninth Circuit’s

1 Drummond also contradicts Petitioners’ view that “the decision below treats Respondents’ U.S. citizenship as irrelevant to its analysis.” Reply Br. of Cardona Pet’rs at 7. “[W]hile Cardona held that plaintiffs could not simply ‘anchor ATS jurisdiction in the nature of the defendants as United States corporations,’ it did not jettison this factor’s usefulness entirely.” 2015 WL 1323122, at *13. The Drummond panel was willing to consider the defendant’s U.S. citizenship as relevant, “even though it does not firmly secure our jurisdiction.” Id.

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decision in Mujica v. AirScan Inc., 771 F.3d 580 (9th Cir. 2014). 2015 WL 1323122, at *15.

It is now clear, if it was not already, that the decision below does not adopt the test that petitioners claim it does; nor does it create any circuit split over the extraterritorial application of the ATS. Petitioners’ real complaint is that the court of appeals got it wrong on the facts. But Respondents have already explained why that decision was correct under the framework that the Eleventh Circuit has now expressly adopted in Drummond. Br. in Opp. at 20-22. In any event, this Court should follow its usual practice of denying requests to correct alleged errors in the lower court’s application of law to fact.

II. There Is No Basis To Grant, Vacate, And Remand.

The Doe Petitioners now appear to concede the lack of a circuit split warranting plenary review by this Court. Instead, they claim that the decision below conflicts with the Eleventh Circuit’s own decision in Drummond, and ask for a GVR order on that basis. Supp. Br. of Doe Pet’rs at 4.

As an initial matter, allegations of an intra-circuit split rarely if ever trigger a GVR under this Court’s practice. It has long been the policy of this Court to leave it to “a Court of Appeals to reconcile its internal difficulties.” Wisniewski v. United States, 353 U.S. 901, 902 (1957). If there were truly “disagreement within the Eleventh Circuit as to the reach of the ATS” (Supp. Br. of Doe Pet’rs at 3), it would be up to the Eleventh Circuit to resolve that disagreement en banc. The fact that the Eleventh

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Circuit has repeatedly declined en banc review of post-Kiobel extraterritoriality decisions is a telling indication that, just as the panel in Drummond concluded, no such disagreement exists. The petition for rehearing en banc in the present case did not receive a single vote, Pet. App. 156, and the day after the Eleventh Circuit decided Drummond, the full court of appeals denied en banc review in Baloco v. Drummond. No. 12-15268-BB, Order (Mar. 26, 2015).

A GVR order is especially unwarranted because the Drummond panel went out of its way to emphasize that it was adhering to circuit precedent. In fact, though it applied “precisely [the legal standard] petitioners in this case are arguing” (Supp. Br. of Doe Pet’rs at 3), the Drummond panel was “compel[led]” to conclude, by “application of [the Eleventh Circuit’s] prior opinions,” that it lacked jurisdiction. 2015 WL 1323122, at *4. This case, Baloco, and Doe v. Drummond all involved “similar domestic conduct.” Id. at *16. Accordingly, “[i]n light of [Eleventh Circuit] precedent, the domestic location of the decision-making alleged in general terms here does not outweigh the extraterritorial location of the rest of Plaintiffs’ claims.” Id.

In short, the Drummond panel made clear that it viewed that decision and the decision below as entirely consistent. There is no reasonable likelihood that a GVR would lead the court of appeals to reconsider its view that there is no jurisdiction. To the contrary, the court of appeals on remand would be bound by the Drummond and Baloco panels’ finding of no jurisdiction under “similar” facts. Indeed, it would make no sense to remand this case

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for further consideration in light of a decision that “adhere[d] to the result[]” in this very case. Id. at *18.

CONCLUSION

For the foregoing reasons, as well as the reasons set forth in the brief in opposition, the petition should be denied.

Respectfully submitted,

Jonathan M. SperlingCOVINGTON & BURLING LLP The New York Times BuildingNew York, NY 10018-1405 (212) 841-1000

John E. HallJames M. Garland Mark W. Mosier COVINGTON & BURLING LLP One CityCenter 850 Tenth Street, N.W. Washington, DC 20001-4956 jhall@cov.com (202) 662-6000

April 2015