     Case: 15-20225   Document: 00513820083    Page: 1   Date Filed: 01/03/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                    Fifth Circuit

                                                                       FILED
                                                                   January 3, 2017
                                No. 15-20225
                                                                    Lyle W. Cayce
                                                                         Clerk
RAMCHANDRA ADHIKARI; DEVAKA ADHIKARI; JIT BAHDUR
KHADKA; RADHIKA KHADKA; BINDESHORE SINGH KOIRI; PUKARI
DEVI KOIRI; CHITTIJ LIMBU; KAMALA THAPA MAGAR; MAYA THAPA
MAGAR; BHAKTI MAYA THAPA MAGAR; TARA SHRESTHA; NISCHAL
SHRESTHA; DIL BAHADUR SHRESTHA; GANGA MAYA SHRESTHA;
SATYA NARAYAN SHAH; RAM NARYAN THAKUR; SAMUNDRI DEVI
THAKUR; JITINI DEVI THAKUR; BHIM BAHADUR THAPA; BISHNU
MAYA THAPA; BHUJI THAPA; KUL PRASAD THAPA; BUDDI PRASAD
GURUNG,

             Plaintiffs–Appellants,

v.

KELLOGG BROWN & ROOT, INCORPORATED; KELLOGG BROWN &
ROOT SERVICES, INCORPORATED; KBR, INCORPORATED; KBR
HOLDINGS, L.L.C.; KELLOGG BROWN & ROOT L.L.C.; KBR TECHNICAL
SERVICES, INCORPORATED; KELLOGG BROWN & ROOT
INTERNATIONAL, INCORPORATED; SERVICE EMPLOYEES
INTERNATIONAL, INCORPORATED; OVERSEAS EMPLOYMENT
ADMINISTRATION; OVERSEAS ADMINISTRATION SERVICES,

             Defendants–Appellees.




                Appeal from the United States District Court
                     for the Southern District of Texas


Before HIGGINBOTHAM, PRADO, and GRAVES, Circuit Judges.

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                                         No. 15-20225
EDWARD C. PRADO, Circuit Judge:
         In 2004, an Iraqi insurgent group kidnapped and murdered twelve
Nepali men as they traveled through Iraq to a United States military base to
work for Daoud & Partners (“Daoud”), a Jordanian corporation that had a
subcontract with Defendant–Appellee Kellogg Brown Root (“KBR”). 1 In 2008,
the victims’ families, and one Daoud employee who was not captured
(collectively “Plaintiffs”), sued Daoud and KBR. Plaintiffs alleged that the
companies “willfully and purposefully formed an enterprise with the goal of
procuring cheap labor and increasing profits,” and thereby engaged in human
trafficking. Plaintiffs brought causes of action under the Alien Tort Statute
(“ATS”), the Trafficking Victims Protection Reauthorization Act (“TVPRA”),
and state common law. Although Plaintiffs settled with Daoud, they have
continued their lawsuit against KBR. The district court, after nearly six years
of motion practice and discovery, eventually dismissed all of Plaintiffs’ claims.
         We hold that the district court’s grant of summary judgment on the ATS
claims in favor of KBR was proper in light of the Supreme Court’s decision in
Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), which held that
the ATS did not apply extraterritorially. We also conclude that the district
court correctly dismissed the TVPRA claims because (1) the TVPRA did not
apply extraterritorially at the time of the alleged conduct in 2004 and (2)
applying a 2008 amendment to the TVPRA that had the effect of permitting
Plaintiffs’ extraterritorial claims would have an improper retroactive effect on
KBR. Lastly, we hold that the district court did not abuse its discretion in
dismissing the common law claims by refusing to equitably toll Plaintiffs’ state
law tort claims. Accordingly, we AFFIRM.



         1   KBR refers to several related corporate entities—all named as Defendants in this
case.
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                                  No. 15-20225
                              I. BACKGROUND
A.    Factual Background
      Plaintiffs–Appellants in this case are Buddi Gurung (“Plaintiff Gurung”)
and surviving family members of eleven deceased men (collectively, the
“Deceased”). All Plaintiffs are citizens of Nepal.
      In or around 2004, the Deceased were recruited to work by a Nepal-based
recruiting company. As the district court found, “each man was promised a
hotel related job in Jordan” and “each man’s family took on significant debt in
order to pay recruitment fees.” The Deceased travelled from Nepal to Jordan
where they were housed by a Jordanian job-brokerage company, Morning Star
for Recruitment and Manpower Supply (“Morning Star”). Morning Star
transferred the Deceased to Daoud. Daoud had a subcontract with KBR, a U.S.
military contractor, to provide staff to operate the Al Asad Air Base (“Al Asad”),
a U.S. military base north of Ramadi, Iraq.
      While in Jordan, the Deceased “were subject to threats and harm,” “their
passports were confiscated,” and they were “locked into a compound and
threatened.” The Deceased were also told for the first time that they were
actually being sent to Iraq to work on Al Asad and would be paid only three-
quarters of what they were initially promised.
      In August 2004, Daoud transported the Deceased into Iraq in an
unprotected automobile caravan. The Deceased, however, never made it to the
base. While traveling through Iraq, they were captured by Iraqi insurgents.
The insurgents posted online videos of the Deceased in which the Deceased
said that they had been “trapped and deceived and sent to Jordan” and had
been “forced . . . to go to Iraq.” Horrifically, the Iraqi insurgents executed the
Deceased, and a video of the executions was broadcast by international media
outlets,


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                                      No. 15-20225
       Plaintiff Gurung travelled in the same automobile caravan as the
Deceased. He also had been recruited to work in Nepal and had travelled to
Jordan, but the car he was in was not captured and he arrived at Al Asad.
Plaintiff Gurung worked on the base as a “warehouse loader/unloader” for
approximately fifteen months. Plaintiff Gurung alleged that Daoud and KBR
told him that “he could not leave until his work in Iraq was complete.”
B.     Procedural Background
       In 2008, Plaintiffs filed suit against KBR and Daoud. They asserted
claims under the TVPRA and the ATS, and also brought common law
negligence claims. 2 In November 2009, the district court granted KBR’s motion
to dismiss Plaintiffs’ common law negligence claims. It held that these claims
were barred by the statute of limitations and denied Plaintiffs’ request for
equitable tolling. However, the court denied KBR’s motion as to Plaintiffs’
TVPRA and ATS claims.
       In August 2013, the district court granted in part and denied in part
KBR’s motion for summary judgment. It dismissed Plaintiffs’ ATS claims
against KBR in light of the Supreme Court’s intervening decision in Kiobel. In
Kiobel,    the    Supreme      Court     held     that     the     presumption     against
extraterritoriality applies to ATS claims and nothing in the statute rebuts the
presumption. 133 S. Ct. at 1669. The district court held that Kiobel compelled
dismissal of the ATS claims because “all relevant conduct by Daoud and KBR
occurred outside of the United States.” The court denied KBR’s motion for
summary judgment on the TVPRA claim, noting that the law was “expressly
extraterritorial” under 18 U.S.C. § 1596.




       2 Plaintiffs also asserted claims under the Racketeer Influenced and Corrupt
Organization statute (“RICO”), which the district court dismissed. Because Plaintiffs do not
challenge the dismissal of these claims, they are not at issue on appeal.
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                                  No. 15-20225
      KBR moved for interlocutory review of the district court’s TVPRA ruling
under 28 U.S.C. § 1292(b). In response, the district court reconsidered its
denial of summary judgment sua sponte on the TVPRA claim. The court
reversed its previous decisions and held that the TVPRA—like the ATS—did
not apply extraterritorially at the time of the alleged conduct in 2004. It
explained that although Congress passed an amendment in 2008 that provided
federal courts with jurisdiction over purely extraterritorial TVPRA civil
claims, see Pub. L. No. 110-457, § 223(a), 122 Stat. 5044 (2008) (codified at 18
U.S.C. § 1596(a)), this amendment had the effect of altering the parties’
substantive rights and, as a result, could not be applied retroactively to KBR’s
alleged 2004 conduct.
      Plaintiffs responded by filing motions for rehearing on the district court’s
TVPRA and ATS rulings and for leave to amend their ATS claims. In March
2015, the district court denied these motions. This appeal followed.
                                II. DISCUSSION
      Plaintiffs argue that we should allow their ATS, TVPRA, and common
law tort claims to proceed. We address each claim in turn.
A.    The ATS Claims
      The district court dismissed the ATS claims at summary judgment. We
review a grant of summary judgment de novo. RTM Media, LLC v. City of
Houston, 584 F.3d 220, 223 (5th Cir. 2009). “Summary judgment is proper
when the evidence demonstrates that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law.” Id. (quoting Chacko v. Sabre, Inc., 473 F.3d 604, 609 (5th Cir. 2006)).
      “The ATS provides, in full, that ‘[t]he district courts shall have original
jurisdiction of any civil action by an alien for a tort only, committed in violation
of the law of nations or a treaty of the United States.’” Kiobel, 133 S. Ct. at
1663 (quoting 28 U.S.C. § 1350). Although the statute “provides district courts
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                                   No. 15-20225
with jurisdiction to hear certain claims,” it “does not expressly provide any
causes of action.” Id. Rather, the ATS provides jurisdiction for a “modest
number of international law violations” that are derived from federal common
law. Id. (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2004)). To be
cognizable, a plaintiff’s claims must be stated “with the requisite definite
content and acceptance among civilized nations.” Doe v. Drummond Co., 782
F.3d 576, 583 (11th Cir. 2015) (quoting Kiobel, 133 S. Ct. at 1663), cert. denied,
136 S. Ct. 1168 (2016).
      Plaintiffs contend that KBR’s alleged involvement in the trafficking of
the Deceased and Plaintiff Gurung and in the forced labor of Plaintiff Gurung
at Al Asad constitute actionable torts under the ATS. KBR counters that
Plaintiffs’ allegations of misconduct in foreign countries are barred by the
presumption against extraterritoriality.
      1. The Presumption Against Extraterritoriality
      The presumption against extraterritoriality is a canon of statutory
interpretation rooted in the “longstanding principle” that a federal statute “is
meant to apply only within the territorial jurisdiction of the United States”
absent congressional intent to the contrary. Morrison v. Nat’l Austl. Bank Ltd.,
561 U.S. 247, 255 (2010) (quoting EEOC v. Arabian Am. Oil Co., 499 U.S. 244,
248 (1991)). “When a statute gives no clear indication of an extraterritorial
application, it has none.” Id.
      A two-step inquiry governs the presumption’s application to a statute.
RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2101 (2016). First, “we
ask whether the presumption against extraterritoriality has been rebutted—
that is, whether the statute gives a clear, affirmative indication that it applies
extraterritorially.” Id. Second, “[i]f the statute is not extraterritorial, then . . .
we determine whether the case involves a domestic application of the statute,
and we do this by looking to the statute’s ‘focus.’” Id.
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                                   No. 15-20225
      Step two’s “focus” inquiry is derived from the Supreme Court’s decision
in Morrison. See 561 U.S. at 255. As the Supreme Court explained, whether
the presumption bars a claim is not always “self-evidently dispositive” because
cases will often have some “contact with the territory of the United States.” Id.
at 266. In Morrison, the plaintiffs had brought suit under § 10(b) of the
Securities Exchange Act of 1934 (“Exchange Act”) based on alleged
misrepresentations made in connection with the sales and purchases of
securities registered on foreign exchanges. Id. at 250–53. Some of these
misrepresentations occurred in the United States. Id. After holding the
presumption against extraterritoriality applied to § 10(b), id. at 265, the Court
“engaged in a separate inquiry to determine whether the complaint . . .
involved a permissible domestic application of § 10(b) because it alleged that
some of the relevant misrepresentations were made in the United States.” RJR
Nabisco, 136 S. Ct. at 2100. The Court’s separate inquiry considered the
statute’s “focus.” Id.; Morrison, 561 U.S. at 266. The Court ruled that the
Exchange Act’s “focus” was “not upon the place where the deception originated,
but upon purchases and sales of securities in the United States.” Morrison, 561
U.S. at 266. It concluded that because the statute was focused on domestic
securities   transactions,   the   plaintiffs’   alleged   domestic   activity—the
misrepresentations—made in connection with a foreign transaction failed to
show a permissible domestic application of the statute. See id. at 267; RJR
Nabisco, 136 S. Ct. at 2100.
      As for the ATS, the Supreme Court in Kiobel addressed step one of the
extraterritoriality inquiry: the Court held that the “presumption against
extraterritoriality applies to claims under the ATS, and that nothing in the
statute rebuts that presumption.” 133 S. Ct. at 1669. In that case, Nigerian
nationals sued Dutch, British, and Nigerian corporations, alleging that they
aided and abetted the Nigerian military in committing international law
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                                       No. 15-20225
violations in Nigeria. Id. at 1662. The Court held that the ATS did not confer
jurisdiction because “all the relevant conduct took place outside the United
States.” 3 Id. at 1669. Although the Court found that the presumption precluded
the plaintiffs’ claims “[o]n these facts,” it did not foreclose the possibility that
there may be circumstances in which the bar would not apply. Id. The Court
stated that the ATS could create jurisdiction for “claims [that] touch and
concern the territory of the United States . . . with sufficient force to displace
the presumption against extraterritorial application.” Id. (citing Morrison, 561
U.S. at 265–73). Notably, in discussing claims that “touch and concern” the
United States, the Court cited to Morrison and its “focus” inquiry. See Kiobel,
133 S. Ct. at 1669 (citing Morrison, 561 U.S. at 265–73).
       On appeal, the parties dispute the meaning of Kiobel’s “touch and
concern” language, including how to reconcile it with Morrison’s “focus”
inquiry. Plaintiffs, along with amici curiae, suggest that Kiobel provided an
ATS-specific test that largely supplants Morrison’s “focus” analysis. In
support, Plaintiffs point to the Fourth Circuit’s decision in Al Shimari v. CACI
Premier Tech., Inc., 758 F.3d 516 (4th Cir. 2014), one of the first decisions to
analyze Kiobel’s “touch and concern” language. In Al Shimari, the court
observed that “the ‘claims,’ rather than the alleged tortious conduct, must
touch and concern United States territory with sufficient force, suggesting that
courts must consider all the facts that give rise to ATS claims, including the



       3 The plaintiffs in Kiobel alleged that after residents of Ogoniland, Nigeria, began to
protest the defendants’ oil exploration in that area, the defendants “enlisted the Nigerian
Government to violently suppress [these] burgeoning demonstrations.” 133 S. Ct. at 1662.
The plaintiffs further alleged that the defendants “aided and abetted” the Nigerian military
and police forces in committing atrocities against the Ogoni residents, including by providing
the “Nigerian forces with food, transportation, and compensation.” Id. at 1663. The
defendants’ only identified contact with the United States was that their shares were listed
on the New York Stock Exchange and an affiliated company had an office in New York City.
Id. at 1677 (Breyer, J., concurring).
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                                  No. 15-20225
parties’ identities and their relationship to the causes of action.” Id. at 527
(quoting Kiobel, 133 S. Ct. at 1669). Plaintiffs contend that Kiobel mandates a
fact-specific analysis that looks to “the totality of [their] claim’s connection to
U.S. territory and the national interest.”
      KBR responds that RJR Nabisco makes clear that Morrison’s “focus” test
still governs. We agree. In RJR Nabisco, the Supreme Court observed that both
“Morrison    and   Kiobel   reflect   a   two-step   framework     for   analyzing
extraterritoriality issues.” 136 S. Ct. at 2101. As the Court clarified, Kiobel did
not reach step two—i.e., the Court “did not need to determine, as [it] did in
Morrison, the statute’s ‘focus’”—because “‘all the relevant conduct’ regarding”
the alleged international-law violations occurred overseas. Id. (quoting Kiobel,
133 S. Ct. at 1670). In other words, the Court in Kiobel did not disclaim the
focus inquiry for ATS claims. It simply pretermitted the issue. See Balintulo v.
Daimler AG, 727 F.3d 174, 191 (2d Cir. 2013) (“[S]ince all the relevant conduct
in Kiobel occurred outside the United States—a dispositive fact in light of the
Supreme Court’s holding—the Court had no reason to explore, much less
explain, how courts should proceed when some of the relevant conduct occurs
in the United States.”).
      Therefore, if an ATS claim involves some domestic activity relevant to
the claim, “further analysis” is required. Morrison, 561 U.S. at 266; accord RJR
Nabisco, 136 S. Ct. at 2100. This analysis—step two of the extraterritoriality
inquiry—requires looking to the ATS’s focus, which resolves whether the
claims “touch and concern” the United States territory with “sufficient force”
such that the presumption against extraterritoriality is displaced. Kiobel, 133
S. Ct. at 1669; see also Mastafa v. Chevron Corp., 770 F.3d 170, 182 (2d Cir.
2014) (“An evaluation of the presumption’s application to a particular case is
essentially an inquiry into whether the domestic contacts are sufficient to
avoid triggering the presumption at all.”).
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                                   No. 15-20225
      Step two, however, requires distinguishing between conduct underlying
the plaintiff’s claim—i.e., cause of action—from conduct relevant to the
statute’s focus. Only conduct relevant to the statute’s focus determines
domestic application of the statute. See Morrison, 561 U.S. at 266. Thus, for
ATS claims, “[i]f the conduct relevant to the [ATS’s] focus occurred in the
United States, then the case involves a permissible domestic application even
if other conduct occurred abroad.” RJR Nabisco, 136 S. Ct. at 2101. But “if the
conduct relevant to the focus occurred in a foreign country, then the case
involves an impermissible extraterritorial application regardless of any other
conduct that occurred in U.S. territory.” Id.
      We note that other circuits have offered differing interpretations of
Kiobel’s “touch and concern” language, including to what extent it adopts
Morrison’s “focus” inquiry. The Ninth Circuit has explicitly held that Kiobel
“did not incorporate Morrison’s focus test,” Doe I v. Nestle USA, Inc., 766 F.3d
1013, 1028 (9th Cir. 2014), although the eight judges that dissented from
denial of rehearing en banc disagreed, see Doe I v. Nestle USA, Inc., 788 F.3d
946, 953 (9th Cir. 2015) (Bea, J., dissenting). By contrast, the Second Circuit
has held that Morrison controlled its ATS analysis by requiring courts to
evaluate “the ‘territorial event[s]’ or ‘relationship[s]’ that were the ‘focus’ of the
ATS.” Mastafa, 770 F.3d at 184 (quoting Morrison, 561 U.S. at 266). The
Eleventh Circuit has adopted a hybrid approach: it “amalgamate[d] Kiobel’s
standards with Morrison’s focus test, considering whether ‘the claim’ and
‘relevant conduct’ are sufficiently ‘focused’ in the United States to warrant
displacement and permit jurisdiction.” Doe v. Drummond, 782 F.3d at 590
(quoting Baloco v. Drummond Co., 767 F.3d 1229, 1238–39 (11th Cir. 2014)),
cert. denied, 136 S. Ct. 1168 (2016).
      We have not yet entered the jurisprudential fray surrounding Kiobel.
Nevertheless, we conclude that the Supreme Court’s guidance in RJR
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                                 No. 15-20225
Nabisco—which was issued after the foregoing circuit court opinions—is
determinative and, in turn, apply RJR Nabisco’s two-step framework. See 136
S. Ct. at 2101. As explained further below, our approach largely comports with
the Second Circuit’s “ATS ‘focus’ analysis” to the extent it involves “examining
the conduct alleged to constitute violations of the law of nations, and the
location of that conduct.” Mastafa, 770 F.3d at 185.
      2. Application of the Two-Step Framework
      We turn to applying the two-step framework where, as here, the ATS
claims involve extraterritorial conduct. Kiobel answered step one: the ATS does
not apply extraterritorially. Thus, under step two, we must determine whether
Plaintiffs have sought a domestic application of the statute. We first look to
whether there is any domestic conduct relevant to Plaintiffs’ claims under the
ATS. If we conclude that the record is devoid of any domestic activity relevant
to Plaintiffs’ claims, our analysis is complete: as in Kiobel, the presumption
against extraterritoriality bars the action. See Kiobel, 133 S. Ct. at 1669; RJR
Nabisco, 136 S. Ct. at 2101.
      Plaintiffs allege that KBR violated international law by engaging in a
scheme to traffic Plaintiffs and to subject them to forced labor on Al Asad. As
for the claim regarding the Deceased, the recruitment, transportation, and
alleged detention by Daoud and Morning Star all occurred in Nepal, Jordan,
and Iraq. The Deceased never arrived at Al Asad. Thus, none of this overseas
conduct relevant to their trafficking claim—even assuming without deciding
that it can be imputed to KBR—could support the conclusion that Plaintiffs
seek to apply the ATS domestically.
      Plaintiffs further contend that the district court had jurisdiction under
the ATS in light of KBR’s conduct (1) on Al Asad and (2) within the United
States, which Plaintiffs argue is sufficient to displace the presumption against
extraterritoriality.
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           a.        Al Asad
       Plaintiffs argue that Al Asad was under the jurisdiction and control of
the United States and that, as a result, KBR’s actions on the base constitute
domestic conduct for purposes of their ATS claims. In particular, they claim
that KBR’s conduct on Al Asad was integral to Plaintiff Gurung’s claim that
he was subject to forced labor during the fifteen months he worked on the base.
They also contend that KBR’s conduct at Al Asad is relevant to the claim that
the Deceased were victims of human trafficking. Notably, the district court
found that Plaintiffs had presented a genuine dispute of material fact whether
KBR “knowingly obtained trafficked labor during the relevant time period,”
although it concluded that evidence pointed only to KBR’s Al Asad operations.
       In deciding whether KBR’s conduct on Al Asad constitutes domestic
conduct, we first address how to distinguish between domestic and foreign
conduct for purposes of the presumption against extraterritoriality. 4 KBR
contends that the question is a matter of de jure sovereignty, arguing that
“Iraq’s retention of de jure sovereignty over Al Asad defeats characterizing it
as U.S. territory.” See Coalition Provisional Authority Order No. 17 (Revised)
§ 9 (noting that any premises operated by the Multinational Forces in Iraq
“remain Iraqi territory”). KBR’s assertion is not without support in recent
Supreme Court case law. In Kiobel, the Court held that the issue was whether
a claim under the ATS “may reach conduct occurring in the territory of a
foreign sovereign.” 133 S. Ct. at 1664 (emphasis added). RJR Nabisco also
suggests that domestic conduct is that which “occurred in the United States”
rather than “in a foreign country.” 136 S. Ct. at 2101. Nevertheless, the




       4 It is worth noting the scope of Plaintiffs’ reasoning: it is not limited to the ATS.
Plaintiffs’ contention would compel the conclusion that federal laws generally applied to Al
Asad in 2004.
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Supreme Court in Kiobel and RJR Nabisco did not squarely address whether
what constitutes the United States also encapsulates its de facto territory.
       Plaintiffs counter by citing to the Supreme Court’s decision in Rasul v.
Bush, 542 U.S. 466 (2004), which suggests a functional inquiry may be
applicable. In Rasul, the Court addressed whether the federal habeas statute,
28 U.S.C. § 2241, applied to persons detained at the United States Naval Base
at Guantanamo Bay, Cuba. Id. at 470–75. The Court explained that
“[w]hatever traction the presumption against extraterritoriality might have in
other contexts, it certainly has no application to the operation of the habeas
statute with respect to persons detained within ‘the territorial jurisdiction’ of
the United States.” Id. at 480 (quoting Foley Bros., Inc. v. Filardo, 336 U.S.
281, 285 (1949)). In coming to this conclusion, the Court highlighted that the
“United States exercise[d] ‘complete jurisdiction and control’ over the
Guantanamo Bay Naval Base, and may continue to exercise such control
permanently if it so chooses.” Id. (quoting Treaty Between the United States
of America and Cuba, art. 3, May 29, 1934). However, the Court also noted its
conclusion was supported by the Government’s concession that the habeas
statute “would create federal-court jurisdiction over the claims of an American
citizen held at the base.” Id. at 481.
       At least one court has observed that Rasul’s holding is essentially limited
to the habeas context. See Marshall v. Exelis Sys. Corp., No. 13-CV-00545, 2014
WL 1213473, at *7 (D. Colo. Mar. 24, 2014). 5 Regardless, we need not resolve



       5 Plaintiffs also cite the Supreme Court’s analysis in Boumediene v. Bush, 553 U.S.
723 (2008), which adopted a functional approach rather than a “formalistic sovereignty-based
test for determining the reach of the Suspension Clause.” Id. at 762. They argue that we
should apply Boumediene’s analysis to decide whether Al Asad constituted United States
territory for purposes of the presumption against extraterritoriality. KBR counters that
Boumediene is inapposite because it was “driven by separation-of-powers concerns,” namely
the essential role the writ of habeas corpus has on constraining government authority. See
Boumediene, 553 U.S. at 765–66. By contrast, the presumption against extraterritoriality—
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                                        No. 15-20225
to what extent Rasul’s reasoning extends beyond the habeas context for
purposes of the presumption against extraterritoriality. Assuming arguendo
that it applies here, Plaintiffs have failed to establish that the United States
controlled Al Asad in 2004 such that it constituted the territory of the United
States. As other courts have found, a U.S. military base does not constitute de
facto territory where “the United States has not demonstrated intent to
exercise sovereignty over” that base permanently. Marshall, 2014 WL
1213473, at *6; Al Maqaleh v. Gates, 605 F.3d 84, 97 (D.C. Cir. 2010) (rejecting
“the notion that [the United States’] de facto sovereignty extends to” Bagram
Airfield in Afghanistan where “there is no indication of any intent to occupy
the base with permanence”). Here, in contrast with the Guantanamo Bay
Naval Base—over which the United States had “unchallenged and indefinite
control,” Rasul, 542 U.S. at 487 (Kennedy, J., concurring)—the United States’
use of Al Asad had only begun in 2003, one year before the conduct at issue.
Further, it lasted until only 2011. On this record, we are unconvinced that Al
Asad constituted de facto territory of the United States in 2004. Consequently,
because KBR’s actions at Al Asad occurred in Iraq and not the United States,
those actions cannot constitute domestic conduct relevant to their ATS claims.
           b.         U.S.-Based Conduct
       Plaintiffs also argue that U.S.-based conduct rebuts the presumption
against extraterritoriality. First, they cite KBR’s domestic payments to Daoud,
the subcontractor that hired the Deceased and Plaintiff Gurung. Second, they



a canon of statutory interpretation—is only “a presumption about a statute’s meaning, rather
than a limit upon Congress’s power to legislate.” Morrison, 561 U.S. at 255. We agree with
KBR that Boumediene’s analysis does not apply. See Marshall, 2014 WL 1213473, at *7
(“Boumediene is not simply a rights-based decision which bestows rights and freedoms upon
those at Guantánamo. Rather, it is a limitation on government power to act extra-judicially
in a place that is functionally a territory of the United States.”). Thus, we address Plaintiffs’
claim based solely on Rasul because it explicitly addressed the presumption against
extraterritoriality.
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                                  No. 15-20225
claim that employees based in Houston, Texas, were “aware of allegations of
human trafficking at [KBR’s] worksites.”
      Whether Plaintiffs seek a domestic application of the statute is
determined by the location of the conduct relevant to the ATS’s focus. See RJR
Nabisco, 136 S. Ct. at 2101. Thus, we ask what the “‘focus’ of congressional
concern” is with the ATS. Morrison, 561 U.S. at 266. We agree with the district
court that the ATS’s focus is the “tort . . . committed in violation of the law of
nations or a treaty of the United States.” 28 U.S.C. § 1350. That is, the focus is
conduct that violates international law, which the ATS “seeks to ‘regulate’” by
giving federal courts jurisdiction over such claims. Morrison, 561 U.S. at 267.
And if that conduct “occurred in a foreign country, then the case involves an
impermissible extraterritorial application regardless of any other conduct that
occurred in U.S. territory.” RJR Nabisco, 136 S. Ct. at 2101; see also Mastafa,
770 F.3d at 185 (noting that the “ATS ‘focus’ analysis” requires “examining the
conduct alleged to constitute violations of the law of nations, and the location
of that conduct”); Doe v. Drummond, 782 F.3d at 592 (“[O]ur jurisdictional
inquiry requires us to consider the domestic or extraterritorial 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.”).
      Plaintiffs allege that KBR was directly liable for the tort of human
trafficking and forced labor. However, all the conduct comprising the alleged
international law violations occurred in a foreign country. As the district court
explained, “Plaintiffs can no more pursue an ATS claim against KBR based on
those extraterritorial actions than they can pursue an ATS claim against
Daoud.”
      Plaintiffs have failed to show how KBR’s alleged financial transactions
permit a domestic application of the ATS. They contend that KBR “transferred
payments to [Daoud] from the United States, using New York Banks.”
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                                  No. 15-20225
However, they failed to connect the alleged international law violations to
these payments or demonstrate how such payments—by themselves—
demonstrate that KBR’s U.S.-based employees actually engaged in trafficking
the Deceased or forcing Plaintiff Gurung to work on its base. See Mastafa, 770
F.3d at 185 (citing Balintulo, 727 F.3d at 192 (holding that the plaintiffs’
“allegations   were    insufficient   to   displace   the    presumption”    against
extraterritoriality where “defendants’ alleged domestic conduct lacked a clear
link to the human rights abuses occurring in South Africa that were at the
heart of plaintiffs’ action”)).
      Further, Plaintiffs’ contention that KBR’s U.S.-based employees may
have known about “allegations” of human rights abuse by Daoud or KBR
overseas is not enough to raise a genuine fact dispute that those employees
were directly liable for violating international law. In response to Plaintiffs’
motion for reconsideration of its ruling, the district court acknowledged that
Plaintiffs had introduced some evidence suggesting KBR knew it obtained
trafficked labor. However, it noted that such evidence only implicated KBR’s
operations overseas. Plaintiffs had failed to introduce any evidence indicating
that KBR’s U.S.-based employees either (1) “understood the circumstances
surrounding Daoud’s ‘recruitment’ and ‘supply’ of third-country nationals like
Plaintiffs” or (2) “worked to prevent those circumstances from coming to light
or Daoud’s practices from being discontinued.” Further, Plaintiffs effectively
concede this point: in reference to the district court’s reasoning that U.S.-based
employees did not “cover up” human trafficking, they argue they “would have
specifically alleged such conduct by U.S.-based KBR employees” had they been
permitted to amend their complaint.
      Lastly, we find Plaintiffs’ alternative arguments unpersuasive. They
note that the Supreme Court in Kiobel reasoned the presumption against
extraterritoriality serves to protect against “international discord” that could
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                                 No. 15-20225
result if U.S. law governed overseas. Kiobel, 133 S. Ct. at 1661 (citing Arabian
Am. Oil Co., 499 U.S. at 248). Relying on this language, Plaintiffs argue that
Kiobel established the inverse rule: the presumption does not apply in cases
where entertaining the ATS claim would not “negatively impact[] U.S. foreign
policy.” They further contend that refusing to apply the presumption here
would promote U.S. foreign policy because it would enable Plaintiffs to hold a
military contractor such as KBR liable for conduct on a U.S. military base.
Relatedly, Plaintiffs argue that their claims are distinguishable from those at
issue in Kiobel because the prohibition against human trafficking is “unique[]
among    international   human     rights   norms”   insofar   as   it   “involves
extraterritorial conduct.”
      However, “[t]hese case-specific policy arguments miss the mark.”
Balintulo, 727 F.3d at 191. The foreign-policy consequences and the
international norms underlying the claim are immaterial to our analysis. “The
canon against extraterritorial application is ‘a presumption about a statute’s
meaning.’” Id. (quoting Morrison, 561 U.S. at 255) (emphasis in original). Thus,
its applicability does not depend on “whether we think ‘Congress would have
wanted’ a statute to apply to foreign conduct ‘if it had thought of the situation
before the court.’” RJR Nabisco, 136 S. Ct. at 2100 (quoting Morrison, 561 U.S.
at 261). The presumption applies “across the board, ‘regardless of whether
there is a risk of conflict between the American statute and a foreign law.’” Id.
(quoting Morrison, 561 U.S. at 255). “Rather than guess anew in each case” as
Plaintiffs urge, “we apply the presumption in all cases, preserving a stable
background against which Congress can legislate with predictable effects.” See
Morrison, 561 U.S. at 261 (emphasis added). The Supreme Court in Kiobel held
that the presumption applied to the ATS. That ruling binds us in all cases.




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                                  No. 15-20225
        3. Leave to Amend
        Plaintiffs contend that they should have been permitted to amend their
complaint to allege aiding and abetting in the United States in light of Kiobel.
The district court denied this request. “[W]here, as here, the district court’s
denial of leave to amend was based solely on futility, we apply a de novo
standard of review identical, in practice, to the standard used for reviewing a
dismissal under Rule 12(b)(6).” City of Clinton v. Pilgrim’s Pride Corp., 632
F.3d 148, 152 (5th Cir. 2010). In denying Plaintiffs’ request, the district court
explained that its “decision was based on the summary judgment record, not
on the pleadings.” The district court noted that because Plaintiffs failed to
identify any evidence which was not or could not have been presented to the
court prior to its ruling, amendment in this case would be futile.
        Plaintiffs on appeal argue that granting leave to amend would comport
with the decisions of other courts after Kiobel which have allowed plaintiffs to
add     allegations    that   might    displace    the       presumption     against
extraterritoriality. Plaintiffs state they “will be able to allege that U.S.-based
managers knew they were obtaining trafficked labor, and continued to do so
despite this knowledge.” Additionally, Plaintiffs assert that they “will be able
to allege the same facts found sufficient in Al Shimari.” In particular, they
claim that they will point to (1) KBR’s U.S. corporate citizenship; (2) the U.S.
citizenship of the responsible KBR employees; (3) the existence of a contract
between KBR and the U.S. government; (4) KBR’s U.S.-based managers’
approval and cover-up of misconduct; and (5) the express intent of Congress.
        We affirm the district court’s decision to deny leave to amend. As an
initial matter, an aiding and abetting theory of liability was not presented to
the district court. Counsel for Plaintiffs reiterated at oral argument that they
believed aiding and abetting was already a theory within the original
complaint, but were seeking to add allegations that would more specifically
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                                     No. 15-20225
satisfy Kiobel’s “touch and concern” test in light of emerging case law.
However, while the “touch and concern” test may have been unsettled after
Kiobel, Plaintiffs had already presented the evidence and made the allegations
that supported their argument in favor of displacing the presumption against
extraterritoriality. 6 Plaintiffs argue they would be able to allege facts that
satisfy Al Shimari, but Al Shimari is not the test. As we have discussed, our
approach requires analysis of the conduct relevant to the statute’s “focus.” See
Morrison, 561 U.S. at 266. Plaintiffs essentially seek to plead the same
allegations that this Court has found insufficient to displace the presumption
against extraterritoriality. Amendment would bring Plaintiffs no closer to
satisfying the test articulated in Morrison and in RJR Nabisco. Accordingly,
amendment would be futile.
B.     The TVPRA Claim
       Plaintiffs alleged that KBR’s actions violated the TVPRA, 18 U.S.C.
§§ 1589, 1590, which prohibits forced labor and human trafficking,
respectively. In their first amended complaint, Plaintiffs cited 18 U.S.C. §
1595, the TVPRA’s civil-remedy provision, which Congress first enacted in
2003. See Pub. L. No. 108-193, 117 Stat. 2878 (2003). Section 1595 permits
suits by private parties for violations of, inter alia, § 1589 or § 1590. After
Plaintiffs filed their first amended complaint, 18 U.S.C. § 1596 became law.
See Pub. L. No. 110-457, § 223(a), 122 Stat. 5044 (2008) (codified at 18 U.S.C.
§ 1596(a)). This provision, entitled “Additional jurisdiction in certain
trafficking offenses,” provides:
       In addition to any domestic or extra-territorial jurisdiction otherwise
       provided by law, the courts of the United States have extra-territorial



       6As KBR explains, “even after KBR raised Kiobel in a supplement to its motion for
summary judgment, Plaintiffs still did not seek leave to amend, arguing instead that their
claims as-then-pleaded satisfied Kiobel’s ‘touch and concern’ language.”
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                                  No. 15-20225
      jurisdiction over any offense (or any attempt or conspiracy to commit
      an offense) under section 1581, 1583, 1584, 1589, 1590, or 1591 if—
            (1) an alleged offender is a national of the United States or an
            alien lawfully admitted for permanent residence (as those
            terms are defined in section 101 of the Immigration and
            Nationality Act (8 U.S.C. 1101)); or
            (2) an alleged offender is present in the United States,
            irrespective of the nationality of the alleged offender.

18 U.S.C. § 1596(a) (the “2008 Amendment”).
      The parties do not dispute that the 2008 Amendment enables federal
courts to entertain a private party’s civil suit that alleges extraterritorial
violations of the TVPRA. See Kiobel, 133 S. Ct. at 1665 (“Congress, even in a
jurisdictional provision, can indicate that it intends federal law to apply to
conduct occurring abroad.”). However, because the TVPRA, unlike the ATS, is
extraterritorial in scope, Plaintiffs argue that their TVPRA claims are viable
under a different theory than the ATS claims. They argue that § 1596—which
explicitly rebuts the presumption against extraterritoriality—applies to their
pending lawsuit.
      However, in seeking to apply § 1596 to pre-enactment conduct, Plaintiffs
confront a different canon of statutory interpretation: the presumption against
retroactivity. This “presumption against retroactive legislation . . . is deeply
rooted in our jurisprudence.” Margolies v. Deason, 464 F.3d 547, 551 (5th Cir.
2006) (quoting Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S.
939, 946 (1997)).
      Plaintiffs make two distinct arguments as to why the presumption
against retroactivity does not prevent applying § 1596 to their pending lawsuit.
First, they claim that § 1596 did not alter the law. Rather, it clarified
Congress’s intent to allow a civil remedy for extraterritorial violations of the
TVPRA. Because the 2008 Amendment merely clarified a meaning extant in
the TVPRA at the time of the alleged conduct, it applies to their case. See, e.g.,
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                                 No. 15-20225
Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1283 (11th Cir. 1999)
(“[C]oncerns about retroactive application are not implicated when an
amendment that takes effect after the initiation of a lawsuit is deemed to
clarify . . . rather than effect a substantive change in the law.”); Liquilux Gas
Corp. v. Martin Gas Sales, 979 F.2d 887, 890 (1st Cir. 1992) (finding it “need
not determine” the retroactivity issue because the amendment at issue merely
clarified existing law). Second, Plaintiffs claim that even if § 1596 was not
merely clarifying, it nonetheless applies to KBR’s alleged pre-enactment
conduct because it is a purely jurisdictional statute that speaks only to the
power of the court rather than the parties’ substantive rights. We address each
argument in turn.
      1. Extraterritoriality Prior to the 2008 Amendment
      Plaintiffs argue that the 2008 Amendment clarified rather than changed
the TVPRA and therefore should apply to their lawsuit. We have observed that
“changes in statutory language” do not always “constitute a change in meaning
or effect” of that statute. NCNB Tex. Nat’l Bank v. Cowden, 895 F.2d 1488,
1500 (5th Cir. 1990) (quoting United States v. Montgomery Cty., 761 F.2d 998,
1003 (4th Cir. 1985)). Rather, Congress may amend a law merely “to make
what was intended all along even more unmistakably clear.” Id. (quoting
Montgomery Cty., 761 F.2d at 1003).
      Several factors inform whether a statutory amendment merely clarifies
the law rather than effects a substantive change. For instance, courts consider:
(1) “whether the enacting body declared that it was clarifying a prior
enactment”; (2) “whether a conflict or ambiguity existed prior to the
amendment”; and (3) “whether the amendment is consistent with a reasonable
interpretation of the prior enactment.” United States ex rel. Garbe v. Kmart
Corp., 824 F.3d 632, 642 (7th Cir. 2016) (quoting Middleton v. City of Chicago,


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                                       No. 15-20225
578 F.3d 655, 663–64 (7th Cir. 2009)); see also FDIC v. Belli, 981 F.2d 838, 841
(5th Cir. 1993).
       We begin with the original act—the civil-remedy provision, 18 U.S.C.
§ 1595—and conclude that it was not ambiguous. At the time Congress added
a civil remedy in 2003, the law regarding extraterritoriality was clear: it was
“assume[d] that Congress legislates against the backdrop of the presumption
against extraterritoriality.” Arabian Am. Oil Co., 499 U.S. at 248. Thus, a law
was presumed not to apply extraterritorially absent “the affirmative intention
of the Congress clearly expressed.” Id. (quoting Benz v. Compania Naviera
Hidalgo, S.A., 353 U.S. 138, 147 (1957)).
       Notably, other provisions of the TVPRA expressly contemplated overseas
endeavors, such as § 107, which established “initiatives in foreign countries to
assist . . . victims of human trafficking.” Trafficking Victims Protection Act,
Pub. L. No. 106-386, § 107(a) (2000) (codified at 22 U.S.C. § 7105). However,
there is no express indication of extraterritorial application in the private
cause-of-action provision, § 1595, or its substantive prohibitions, §§ 1589 and
1590. Rather, the pre-2008 TVPRA was silent on whether the civil remedy
applies extraterritorially. In light of the well-established presumption against
extraterritoriality, we conclude that § 1595 unambiguously did not apply
extraterritorially until § 1596 was enacted.
       Further, nothing in the text of § 1596 expressly indicates that Congress
intended to clarify rather than change the TVPRA. See Middleton, 578 F.3d at
664; Belli, 981 F.2d at 841. Rather, as the provision’s title indicates, it provided
“[a]dditional jurisdiction.” 7 Indeed, the two courts to address TVPRA’s civil


       7 The Fifth Circuit has held that the legislative history may be informative in
discerning whether a law was clarifying. See Belli, 981 F.2d at 841; Cowden, 895 F.2d at
1500. However, in this case, Plaintiffs have failed to introduce any evidence in the legislative
history to support their view. Even if we were to rely on the legislative history, we find that
it supports the view that Congress expanded jurisdiction rather than simply clarifying
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                                      No. 15-20225
remedy provision before 2008 held that the law did not provide a cause of action
for extraterritorial conduct. See Nattah v. Bush, 541 F. Supp. 2d 223, 234
(D.D.C. 2008), aff’d in part, rev’d in part on other grounds, 605 F.3d 1052 (D.C.
Cir. 2010); John Roe I v. Bridgestone Corp., 492 F. Supp. 2d 988, 999–1004
(S.D. Ind. 2007). As such, in contrast to cases where this Court has held an
amendment was clarifying, there was no circuit split or conflict that “provoked”
Congress to “enact an amendment to clarify rather than change the law.”
Cowden, 895 F.2d at 1501.
       Plaintiffs’ only argument is nontextual circumstantial evidence: the 2008
Amendment “was passed promptly after cases questioning the TVPRA’s
extraterritorial application”—specifically, the district court decisions in
Nattah and John Roe I. We may consider the circumstances surrounding the
enactment to determine whether it was clarifying. See Laubie v. Sonesta Int’l
Hotel Corp., 752 F.2d 165, 168 (5th Cir. 1985).
       However, in this case, we find Plaintiffs’ theory of temporal proximity
unavailing. The question is whether, in passing § 1596, Congress “merely
intended to clarify what it had meant all along” in the TVPRA’s civil-remedy
provision. Belli, 981 F.2d at 840. Nothing in the text of the pre-2008 TVPRA or
in the text of § 1596 indicates that a plaintiff was allowed to sue for
extraterritorial violations of the TVPRA before 2008.
       Further, we find Laubie, the case relied on by Plaintiffs, distinguishable.
In that case, this Court held that a Louisiana state law was clarifying based
on the “the timing of the amendment[] and its language.” Laubie, 752 F.2d at
168. Here, the language indicates that the 2008 Amendment is not clarifying.



existing jurisdiction. The House Report for the original version of what became the 2008
amending act states: “This section provides jurisdiction to U.S. courts.” H.R. Rep. No. 110-
430(I), at 55 (2007) (emphasis added). The language “provides jurisdiction” implies that such
jurisdiction did not already exist.
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                                  No. 15-20225
In contrast to Laubie, Plaintiffs’ only evidence is timing. But it is not evident
that the temporal proximity between the two district court rulings and § 1596’s
enactment—by itself—supports their claim. It is equally plausible to infer
based on timing alone that Congress amended the TVPRA to provide a civil
remedy for extraterritorial violations because it had concluded none previously
existed. Indeed, a district court recently made just that inference. See St. Louis
v. Perlitz, No. 3:13-CV-1132, 2016 WL 1408076, at *2 (D. Conn. Apr. 8, 2016)
(“That Congress added [§ 1596,] a new provision explicitly giving
extraterritorial effect to § 1591[, the TVPRA’s prohibition on sex trafficking,]
further supports the conclusion” that the law did not apply extraterritorially
before the amendment.). Such lack of clarity regarding Plaintiffs’ evidence of
timing is precisely why we have admonished that “reliance on subsequent
legislative actions to determine the meaning of an earlier statute is
hazardous.” Cowden, 895 F.2d at 1500. Accordingly, given that nothing in the
text of the TVPRA either in 2004 or today indicates that Plaintiffs could assert
a civil remedy for extraterritorial violations before § 1596 was enacted, the
amendment’s timing fails to persuade us that the law was a clarifying
amendment.
      2. The 2008 Amendment’s Retroactive Effect
      The district court also held that the presumption against retroactivity
prevents applying § 1596 to KBR’s pre-enactment conduct, reasoning that the
law was not merely jurisdictional. The presumption against retroactivity “is
based on ‘the unfairness of imposing new burdens on persons after the fact.’”
Hartford Cas. Ins. Co. v. FDIC, 21 F.3d 696, 700 (5th Cir. 1994) (quoting
Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994)). The Supreme Court’s
decision in Landgraf v. USI Film Products provides the two-step framework
for addressing retroactivity questions.


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                                  No. 15-20225
      First, we consider “whether Congress has expressly prescribed the
statute’s proper reach.” Landgraf, 511 U.S. at 280. If Congress has addressed
the issue, a court need not rely on the “judicial default rules.” Id. But if “the
statute contains no such express command, the court must determine whether
the new statute would have retroactive effect.” Id. A statute, however, does not
have a retroactive effect “merely because it is applied in a case arising from
conduct antedating the statute’s enactment . . . or upsets expectations based
in prior law.” Id. at 269 (internal citation omitted). Rather, a retroactive effect
is present when that statute “would impair rights a party possessed when he
acted, increase a party’s liability for past conduct, or impose new duties with
respect to transactions already completed.” Id. at 280. “If the statute would
operate retroactively, our traditional presumption teaches that it does not
govern absent clear congressional intent favoring such a result.” Id.
      However, there are situations where a court must “apply the law in effect
at the time it renders its decision.” Id. at 273 (quoting Bradley v. Sch. Bd. of
Richmond, 416 U.S. 696, 711 (2006)). “Such situations generally involve
procedural changes to existing law, including statutes which merely alter
jurisdiction.” Hartford Cas. Ins., 21 F.3d at 700. Jurisdiction-altering rules
“usually” do not have retroactive effect because such rules “take[] away no
substantive right but simply change[] the tribunal that is to hear the case.” Id.
at 701 (quoting Landgraf, 511 U.S. at 274). In other words, a jurisdictional
statute has no retroactive effect if it “affect[s] only where a suit may be brought,
not whether it may be brought at all.” Hughes Aircraft, 520 U.S. at 951.
      Plaintiffs do not argue that Congress has “expressly prescribed” the
temporal reach of the TVPRA. Thus, we proceed to the second step to address
whether § 1596 has a retroactive effect.
      Plaintiffs claim that § 1596 has no retroactive effect because it is “purely
jurisdictional.” They argue that the 2008 Amendment, entitled “Additional
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                                   No. 15-20225
jurisdiction in certain trafficking offenses,” only “enlarges the jurisdiction of
U.S. courts” by providing them with “extraterritorial jurisdiction over
trafficking offenses.”
      The Supreme Court’s decision in Hughes Aircraft is instructive. That
case concerned whether an amendment to the False Claims Act (“FCA”) could
be applied retroactively. Hughes Aircraft, 520 U.S. at 941. Prior to the
amendment, the FCA barred a private party’s qui tam suit “based on
information already possessed by the Government.” Id. at 944. The
amendment eliminated this bar in some circumstances. Id. at 941. The court
of appeals held that the amendment “removing certain defenses to qui tam
suits should be applied retroactively to suits based on pre-[enactment] conduct
because the amendment involved only the ‘subject matter jurisdiction’ of
courts to hear qui tam claims and did not affect the substantive liability of qui
tam defendants.” Id. at 944–45.
      The Supreme Court reversed, reasoning that the amendment had a
retroactive effect under Landgraf. Id. at 946–47. The Court reasoned that the
amendment “change[d] the substance of the existing cause of action for qui tam
defendants” by “eliminat[ing] a defense to a qui tam suit—prior disclosure to
the Government.” Id. at 948. The Court also found that the amendment
“essentially create[d] a new cause of action” for private parties. Id. at 950.
Before the amendment, “once the United States learned of a false claim, only
the Government could assert its rights under the FCA against the false
claimant.” Id. at 949. The amendment therefore resulted in an “extension of an
FCA cause of action to private parties in circumstances where the action was
previously foreclosed.” Id.
      Further, the Court rejected the qui tam plaintiffs’ argument that because
the amendment was “jurisdictional,” the “general Landgraf presumption
against retroactivity” did not apply. Id. at 950. The Court explained that
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                                  No. 15-20225
jurisdiction-allocating statutes are not categorically exempt from the Landgraf
analysis. Id. at 950. Rather, “[t]he fact that courts often apply newly enacted
jurisdiction-allocating statutes to pending cases merely evidences certain
limited circumstances failing to meet the conditions for our generally
applicable presumption against retroactivity.” Id. at 951. The Court explained
that the legal effect of this jurisdictional amendment was not limited to
“merely allocat[ing] jurisdiction among forums.” Id. The amendment also
“create[d] jurisdiction where none previously existed; it thus speaks not just to
the power of a particular court but to the substantive rights of the parties as
well.” Id. As a result, the FCA amendment was “as much subject to [the]
presumption against retroactivity as any other.” Id.
        The Supreme Court’s decision in Martin v. Hadix, 527 U.S. 343 (1999),
confirms that the mere fact that a statute is jurisdictional does not fully resolve
the retroactivity inquiry. As the Court explained, “[w]hen determining whether
a new statute operates retroactively, it is not enough to attach a label (e.g.,
‘procedural,’ ‘collateral’) to the statute.” Id. at 359. Instead, under Landgraf,
our retroactivity inquiry “demands a commonsense, functional judgment about
‘whether the new provision attaches new legal consequences to events
completed before its enactment.’” Id. at 357–58 (quoting Landgraf, 511 U.S. at
270).
        The 2008 Amendment, although jurisdictional in nature, alters a party’s
substantive rights under the TVPRA. Prior to § 1596, a private party could not
maintain a civil cause of action under the TVPRA for forced labor or human
trafficking that occurred overseas. Such an action, as noted, would have been
barred by the presumption against extraterritoriality. However, by conferring
“extra-territorial jurisdiction over any offense . . . under” the TVPRA, § 1596
permits private parties to pursue a civil remedy under the TVPRA for
extraterritorial violations. As with the amendment in Hughes Aircraft, § 1596
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                                       No. 15-20225
has the legal effect of “eliminat[ing] . . . a prior defense.” 520 U.S. at 950. After
§ 1596’s enactment, a TVPRA defendant in a civil suit could no longer rely on
a previously available defense: the presumption against extraterritoriality.
Indeed, Plaintiffs do not identify any forum in which they could have
permissibly brought a TVPRA civil cause of action based on their allegations. 8
Consequently, because § 1596 “creat[ed] jurisdiction” for a TVPRA civil case
“where none previously existed” it “speaks not just to the power of a particular
court but to the substantive rights of the parties as well.” See id. at 951.
       Further, Plaintiffs’ emphasis that § 1596 did not alter the unlawfulness
of the alleged conduct under the TVPRA is misplaced. In Hughes Aircraft, the
federal government would have been able to bring suit against the defendant
for the conduct alleged by the private plaintiffs. Prior to § 1596’s enactment,
the federal government could have criminally prosecuted parties for
extraterritorial violations of §§ 1589 and 1590, the prohibitions against human
trafficking and forced labor that KBR is alleged to have violated. See 18 U.S.C.
§ 3261. However, despite these pre-existing criminal prohibitions, § 1596
exposed a TVPRA defendant to civil claims brought by private parties. Such a
result fits squarely within Hughes Aircraft’s reasoning: “In permitting actions
by an expanded universe of plaintiffs with different incentives [than the federal



       8 Plaintiffs rely heavily on Gordon v. Pete’s Auto Service of Denbigh, Inc., 637 F.3d 454
(4th Cir. 2011). However, Gordon is distinguishable. That case involved § 307 of the
Servicemembers Civil Relief Act (“SCRA”), which “prohibits enforcement of liens against
servicemembers during military service.” Id. at 456 (citing 50 U.S.C. app. § 537). The question
was whether a new federal law—§ 802 of the SCRA—which provided a federal cause of action
to enforce § 307’s protections would have a retroactive effect under Landgraf. Id. at 458–59.
The Fourth Circuit found that the new federal law did not “impair[] the parties’ rights or
impose[] new duties” because § 307’s right of non-foreclosure “was already enforceable” in a
state court conversion act. Id. at 459–60 (“In fact, § 307 contemplates that the owner’s right
might be enforced in a conversion action.”). By contrast, Plaintiffs have not asserted that they
could have enforced TVPRA’s substantive protections—i.e., § 1589 and § 1590—before the
2008 Amendment. Thus, unlike the law in Gordon, the 2008 Amendment made the TVPRA’s
conduct-regulating provisions enforceable in civil suits for a new class of claims.
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                                  No. 15-20225
government], the [2008 Amendment] essentially creates a new cause of action.”
See 520 U.S. at 950.
      Plaintiffs counter that even if § 1596 removed a defense to a civil suit
under the TVPRA, the law nonetheless did not alter the parties’ substantive
rights given other laws in effect at the time of the alleged conduct. Specifically,
they contend that KBR was already “civilly liable for the same conduct under
common law and Iraqi law, which provide the same tort remedies.” Under this
interpretation, permitting Plaintiffs to pursue their TVPRA claims would have
no retroactive effect if the parties’ rights and remedies under the TVPRA are
identical to their pre-existing rights and remedies under other laws.
      In support, Plaintiffs cite two cases in which other courts have found that
the Torture Victim Protection Act—which created a civil cause of action for
torture—would not have a retroactive effect because it created “no new
liabilities” and did not “impair rights.” See Cabello v. Fernández-Larios, 402
F.3d 1148, 1154 (11th Cir. 2005); Alvarez-Machain v. United States, 107 F.3d
696, 702 (9th Cir. 1996). Both of these cases, however, concluded that the
Torture Victim Protection Act was indistinguishable from claims made
available under the ATS. Cabello, 402 F.3d at 1154; Alvarez-Machain, 107 F.3d
at 702–03.
      By contrast, Plaintiffs cannot prove there exist parallel rights and
remedies under the ATS. After Kiobel, Plaintiffs’ extraterritorial ATS claims
are barred, and the 2008 Amendment removed the previously available
defense of extraterritoriality. The ATS cannot be said to provide parallel rights
or remedies to Plaintiffs’ extraterritorial TVPRA claims. See Kiobel, 133 S. Ct.
at 1663–65.
      Plaintiffs also argue that the parties’ rights and liabilities under pre-
existing foreign and state law defeat the district court’s conclusion that § 1596
attaches new legal consequences. We find these arguments unavailing. First,
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                                     No. 15-20225
Plaintiffs cite the Iraqi Civil Code, which they argue authorizes tort victims—
including victims of trafficking—to bring claims for civil remedies. Yet, even if
KBR may be liable under Iraqi law, Plaintiffs have not proven that the
remedies under the TVPRA and Iraqi Civil Code are co-extensive. Plaintiffs,
for instance, seek punitive damages in this case. But whereas the TVPRA
authorizes punitive damages, Francisco v. Susano, 525 F. App’x 828, 835 (10th
Cir. 2013); Ditullio v. Boehm, 662 F.3d 1091, 1096 (9th Cir. 2011), no such
damages are available under Iraqi law, Harris v. Kellogg, Brown & Root Servs.,
Inc., 796 F. Supp. 2d 642, 666 (W.D. Pa. 2011). “Retroactive imposition of
punitive damages” is precisely what the Supreme Court found problematic in
Landgraf. See 511 U.S. at 281.
          Second, Plaintiffs cite the “transitory tort doctrine,” arguing that KBR
would have been liable under state tort law. But Plaintiffs’ state law claims
are barred by the statute of limitations. Allowing Plaintiffs to retroactively
bring a TVPRA claim would eliminate that defense, thereby imposing new
liability to KBR. See Hughes Aircraft, 520 U.S. at 948. Additionally, Plaintiffs’
rights or remedies under expired claims cannot be said to parallel the remedies
that the TVPRA would make available if applied. Consequently, allowing
Plaintiffs to bring a TVPRA claim would have an impermissible retroactive
effect.
          3. The MEJA’s Criminal Jurisdiction
          Plaintiffs alternatively rely on the Military Extraterritorial Jurisdiction
Act (“MEJA”) as a basis for jurisdiction for the TVPRA civil claims. Plaintiffs
contend that the TVPRA’s civil remedy attaches whenever a person subject to
the court’s jurisdiction commits a trafficking offense—regardless of whether
the person is criminally prosecuted. In other words, Plaintiffs argue that
MEJA’s limited extraterritorial extension of a host of federal offenses,
including §§ 1589 and 1590 of the TVPRA, can be married with TVPRA’s civil-
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                                  No. 15-20225
remedy provision to provide an alternative “jurisdictional” basis for Plaintiffs’
claim. MEJA applies to “[c]riminal offenses committed by certain members of
the Armed Forces and by persons employed by or accompanying the Armed
Forces outside the United States.” 18 U.S.C. § 3261. Plaintiffs argue that when
Congress enacted the 2008 Amendment, it built upon the existing TVPRA and
MEJA framework and did not exempt TVPRA violations by MEJA-covered
persons. However, Plaintiffs do not cite any cases in which MEJA triggered the
TVPRA and permitted jurisdiction.
       It is undisputed that the TVPRA provisions KBR is alleged to have
violated—§ 1589 and § 1590—could have been prosecuted under MEJA.
However, this Court declines to find that MEJA’s grant of criminal jurisdiction
over felony offenses committed abroad gives Plaintiffs an alternative
jurisdictional basis for their civil claims. Congress must clearly express an
affirmative intention to give a statute extraterritorial effect. Morrison, 561
U.S. at 255. It is simply not clear that Congress affirmatively intended to give
extraterritorial effect to the TVPRA civil-remedy provision via an unrelated
criminal statute that is nowhere referenced in the TVPRA. We agree with the
district court’s conclusion that MEJA is “simply not relevant to the question of
whether Congress intended to legislate extraterritorially when it enacted . . .
the TVPRA.” The connection between these statutes is too attenuated for the
Court to find jurisdiction on this basis.
C.     The State Law Claims
       The district court dismissed Plaintiffs’ negligence claims as time barred
under California or Texas law and declined to toll the claims. Plaintiffs argue
that if their claims did not touch and concern the United States, then the
choice-of-law analysis should have led to the application of Iraqi law. KBR
contends that Plaintiffs cannot revive their state law negligence claims by
invoking Iraq’s statute of limitations for the first time on appeal. KBR argues
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                                    No. 15-20225
that Plaintiffs waived any right to the application of Iraqi law by not raising
that argument earlier and that the district court properly rejected Plaintiffs’
conclusory arguments for tolling the limitations.
      Plaintiffs argue there is no waiver when there is a change in law. They
cite McGee v. Arkel Int’l, LLC, 671 F.3d 539 (5th Cir. 2012), as a case in which
“this Circuit held for the first time that Iraqi law may apply to contractor
conduct in Iraq.” The problem, however, is that even if this Court viewed
McGee as changing the law, it issued that opinion in 2012. While Plaintiffs
discussed McGee in 2014, they did not make this argument until 2015 on
appeal. The district court initially issued an order in 2009 addressing only
California and Texas law. The district court entertained a motion to reconsider,
and there were other opportunities for Plaintiffs to request the application of
the Iraqi statute of limitations.
      In the alternative, Plaintiffs argue that if California or Texas law
applies, the Court should apply equitable tolling. “The doctrine of equitable
tolling preserves a plaintiff’s claims when strict application of the statute of
limitations would be inequitable.” United States v. Patterson, 211 F.3d 927, 930
(5th Cir. 2000) (quoting Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998)).
Courts apply equitable tolling “principally where the plaintiff is actively misled
by the defendant about the cause of action or is prevented in some
extraordinary way from asserting his rights.” Id. (citations omitted). We review
the district court’s decision to deny equitable tolling for abuse of discretion,
unless the district court denied tolling as a matter of law. See Palacios v.
Stephens, 723 F.3d 600, 603 (5th Cir. 2013).
      Plaintiffs argue that the civil conflict in Nepal delayed their suit. The
district court rejected this argument, finding that “[g]eographic location and
personal hardship cannot provide the sole basis for tolling an otherwise
applicable statute of limitations.” Moreover, the district court cited Plaintiffs’
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                                   No. 15-20225
other potential avenues for relief. We find the district court did not abuse its
discretion in denying tolling.
                                 III. CONCLUSION
      For the foregoing reasons, we AFFIRM.




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                                 No. 15-20225
JAMES E. GRAVES, JR., Circuit Judge, concurring in part, dissenting in part:
                                       I.
      I concur with the majority’s decision on Plaintiffs’ non-ATS claims. But
this case squarely raises the question that Kiobel expressly left open: under
what circumstances do a plaintiff’s “claims touch and concern the territory of
the United States . . . with sufficient force to displace the presumption against
extraterritorial application [of the ATS].” Kiobel, 133 S. Ct. at 1669. And on
this question, I part ways with the majority. Plaintiffs here allege that a U.S.
military contractor participated in a human trafficking scheme in order to
fulfill its contract with the U.S. government to provide labor on a U.S. military
base. There is much to support the conclusion that these claims “touch and
concern” the United States. Therefore, I respectfully dissent.
      A. Kiobel’s “Touch and Concern” Test
      The majority adopts an unnecessarily restrictive view as to the meaning
of Kiobel’s “touch and concern” language by engaging in a formalistic
application of the Morrison “focus” test. The majority’s application of the
“focus” test belies the actual focus of the ATS and is inconsistent with the
Supreme Court’s ATS jurisprudence. In the majority’s reading of the “touch
and concern” test, only “domestic conduct . . . sufficient to violate an
international law norm that satisfies Sosa’s requirements of definiteness and
acceptance among civilized nations” would permit extraterritorial application
of the ATS. See Kiobel, 133 S. Ct. at 1670 (Alito, J., concurring)). Rather than
assessing what would displace the presumption against extraterritorial
application of the ATS, id. at 1669, however, this test would eliminate the
extraterritorial reach of the statute completely. If the alleged ATS violations
must take place on domestic soil, the Kiobel majority’s statement regarding
“touch and concern” would be meaningless. In my view, the defendant’s
conduct here falls squarely within the focus of the ATS, and the claims,
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                                 No. 15-20225
therefore, touch and concern the United States with sufficient force to displace
the presumption against extraterritorial application.
      The majority gives inordinate weight to RJR Nabisco in its application
of Kiobel’s “touch and concern” test. Although I agree with the majority that
RJR Nabisco sets forth a two-step framework for analyzing extraterritoriality
issues and suggests that we should interpret Kiobel’s “touch and concern”
language in light of the step-two “focus” inquiry, derived from Morrison v. Nat’l
Australia Bank Ltd., 561 U.S. at 2883–88, I do not agree that RJR Nabisco is
somehow “determinative” of the issues in this case. RJR Nabisco, like Kiobel,
stopped after step one. In RJR Nabisco, the Court determined that Section
1964(c) of the Racketeer Influenced and Corrupt Organizations Act (RICO) was
not expressly extraterritorial and thus requires a civil RICO plaintiff to allege
and prove a domestic injury. 136 S. Ct. at 2111. The plaintiffs, however, had
filed a stipulation in the district court waiving their damages claims for
domestic injuries. Therefore, as in Kiobel, all the “relevant conduct” took place
outside the United States. RJR Nabisco no more illuminates the “focus”
inquiry at step two than does Kiobel, and it leaves open the questions of how
to interpret the focus of the ATS, what conduct is relevant to that focus, and
how courts should proceed when there is potentially relevant conduct both
within and outside the United States.
      The majority then reasons that the “ATS ‘focus’ analysis” involves
examining “the conduct alleged to constitute violations of the law of nations,
and the location of that conduct” (quoting Mastafa, 770 F.3d at 185). I have no
issue with this broad proposition; however, it is no simple matter to apply it to
a case, such as this one, where the alleged conduct is comprised of several
constituent actions that are part of an overall course of conduct constituting a
violation of the law of nations. The particular violation alleged here, human
trafficking, is a transnational crime that uses a global supply chain, which
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                                       No. 15-20225
typically extends across multiple countries and requires an extensive
transnational network to succeed. The crime is accomplished through a dense
system of recruiters, contractors, subcontractors, and parent corporations that
cross cities, states, countries, and continents. 1 Each participant undertakes
actions, such as recruitment, transportation, detention, and employment that
form part of the overall criminal enterprise. While some of these actions, in
isolation, may not constitute a violation of the law of nations, they nevertheless
constitute “relevant conduct” for purposes of the “focus” inquiry, if they play
an integral role in the law of nations violation.
       In addition, I am mindful that the “focus” inquiry centers on the conduct
that constitutes the alleged law of nations violation. But surely the inquiry
permits consideration of pertinent facts underlying the plaintiff’s claim, such
as the identity of the defendant, the nature of the defendant’s liability (direct
or indirect), the type of violation alleged, and any significant connections the
alleged violation has to the United States, above and beyond necessary
allegations of relevant conduct occurring in the United States. While Morrison
and RJR Nabisco are instructive in analyzing how the presumption against
extraterritoriality should be applied to statutes generally, the Supreme Court’s
ATS-specific precedents, Kiobel and Sosa v. Alvarez-Machain, 542 U.S. 692
(2004), must also guide our “focus” inquiry in the context of the ATS. Sosa and
Kiobel demonstrate that such factors are central to the analysis of an ATS
claim, and therefore they ought to inform our examination of the relevance of
the alleged conduct, particularly any domestic conduct, to the focus of the ATS.
       Notably absent from the majority opinion is any mention of the fact that
KBR is a U.S. corporation, which Plaintiffs argue distinguishes this case from



       1 See, e.g., U.S. Department of State, Trafficking in Persons Report (July 2015), at 13–
18, available at https://www.state.gov/documents/organization/245365.pdf.
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                                  No. 15-20225
the “foreign-cubed” scenario in Kiobel. By omitting any mention of this fact,
the majority presumably agrees with the Second Circuit (currently alone in
this view) that a defendant’s U.S. citizenship has no relevance to the “focus”
analysis. See Mastafa, 770 F.3d at 189. But Kiobel itself made clear that the
citizenship of the defendant is not inconsequential. In the same paragraph
describing the “touch and concern” exception to the presumption against
extraterritoriality, the Kiobel majority opined that “[c]orporations are often
present in many countries, and it would reach too far to say that mere
corporate presence suffices.” 133 S. Ct. at 1669. Some courts and commentators
have taken this statement to mean that, although a corporation’s presence in
the United States may be insufficient, standing alone, to displace the
presumption against extraterritoriality, the fact of a defendant’s U.S.
citizenship has some relevance to whether the claims touch and concern the
United States. E.g., Doe v. Drummond, 782 F.3d 576, 594 (11th Cir. 2015)
(“Kiobel implicitly supports that citizenship or corporate status may be
relevant to whether a claim touches and concerns the territory of the United
States, given that, after it set forth the test, it determined that ‘mere corporate
presence’ was insufficient.”); Sarah H. Cleveland, After Kiobel, J. Int’l Crim.
Just. (2014) 12 (3): 551 (explaining that “although mere corporate presence was
not enough in Kiobel” the majority opinion left open whether “domicile or
nationality of a defendant corporation or individual could be sufficient”).
      Sosa also provides guidance as to the focus of the ATS. In Sosa, the Court
examined historical materials at the time of the ATS’s enactment to determine
that in the 18th century, the law of nations comprised two principal elements:
norms governing behavior of nation states toward each other and “a body of
judge-made law regulating the conduct of individuals situated outside
domestic boundaries and consequently carrying an international savor.” 542
U.S. at 714–15. The law of nations required sovereigns to provide redress for
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                                     No. 15-20225
law of nations violations in at least three circumstances: (1) when the violation
occurred on a sovereign’s territory; (2) when a sovereign’s subject committed
the violation; and (3) when a perpetrator used the sovereign’s territory as a
safe harbor to avoid punishment for having committed great wrongs. See
Anthony J. Bellia Jr & Bradford R. Clark, The Alien Tort Statute and the Law
of Nations, 78 U. Chi. L. Rev. 445, 471–76 (2011); see also Restatement (Third)
of Foreign Relations Law § 402 (“Subject to [the reasonableness requirement
of] § 403, a state has jurisdiction to prescribe law with respect to (1) (a) conduct
that, wholly or in substantial part, takes place within its territory; (b) the
status of persons, or interests in things, present within its territory; (c) conduct
outside its territory that has or is intended to have substantial effect within its
territory; (2) the activities, interests, status, or relations of its nationals outside
as well as within its territory . . .”) (emphasis added). Failure to provide such
redress implicated the sovereign as an accomplice in the violation and risked
reprisal from the nation suffering the wrong. See 4 William Blackstone,
Commentaries on the Law of England 67–68 (1769); Emmerich de Vattel, Law
of Nations, Book II, ch. 6, § 76 (1758) (a sovereign “ought not to suffer his
subjects to molest the subjects of other states, or to do them an injury”).
Consequently, U.S. citizens committing international law violations abroad
had the potential to implicate the United States in diplomatic conflicts.
      In sum, concerns about foreign relations were central to the ATS’s
passage. 2 “The statute’s purpose was to address ‘violations of the law of



       2  The majority nevertheless states that “foreign-policy consequences and the
international norms underlying the claim are immaterial to our analysis.” In support, the
majority cites RJR Nabisco’s statement that a presumption about a statute’s meaning applies
“across the board, ‘regardless of whether there is a risk of conflict between the American
statute and a foreign law,’” 136 S. Ct. at 2100 (quoting Morrison, 561 U.S. at 261). RJR
Nabisco, however, was referring, not to the “focus” inquiry at step two of the
extraterritoriality analysis, but to step one, when a court must determine whether the
presumption applies to the statute at all. Concerns that were central to Congress’s purpose
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                                       No. 15-20225
nations, admitting of a judicial remedy and at the same time threatening
serious consequences in international affairs.’” Kiobel, 133 S. Ct. at 1672
(Breyer, J., concurring) (quoting Sosa, 542 U.S. at 715). Prior to the enactment
of the ATS, Congress was frustrated by the federal government’s incapacity to
vindicate rights under the law of nations. Sosa, 542 U.S. at 716–17. Congress
enacted the ATS as an important federal enforcement mechanism intended to
enable the United States as a fledgling nation to meet its obligations under the
law of nations and avoid diplomatic strife with other nation states.
       Given the proliferation of international agreements condemning human
trafficking and forced labor, surely these foreign policy concerns are no less
pertinent in the present day. Among several international accords concerning
trafficking, the United States has signed and ratified a treaty that asks
signatories to hold their citizens responsible for transnational trafficking. 3
Human trafficking has been condemned as a modern-day form of slavery. The
slave trader, like the pirate, is “hostis humani generis, an enemy of all
mankind.” See Sosa, 542 U.S. at 732 (quoting Filartiga v. Pena–Irala, 630 F.2d
876, 890 (2d Cir. 1980)). 4 “And just as a nation that harbored pirates provoked
the concern of other nations in past centuries, so harboring ‘common enemies




in enacting the statute, such as the foreign-policy implications of a defendant’s conduct with
respect to the ATS, are by definition material to the step two analysis of the statute’s focus
and of whether the conduct at issue is relevant to that focus.
        3 See Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially

Women and Children, Supplementing the United Nations Convention Against Transnational
Organized      Crime,     Nov.    15,     2000,   2237     U.N.T.S.     319,   available    at
https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XVIII-12-
a&chapter=18&clang=_en.
        4 Notably, an interpretation of “touch and concern” that requires conduct constituting

a violation of the law of nations within the United States fails to address piracy, which the
Kiobel Court deemed to fall within the ambit of ATS jurisdiction, despite its occurrence on
the high seas. 133 S. Ct. at 1667.

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                                       No. 15-20225
of all mankind’ provokes similar concerns today.” Kiobel, 133 S. Ct. at 1673
(Breyer, J., concurring) (internal reference omitted).
       These foreign policy concerns are particularly heightened where, as here,
the defendant’s conduct directly implicates the United States and its military.
KBR was one of the largest U.S. military contractors operating in Iraq. While
KBR was allegedly exploiting trafficked labor at Al Asad, the U.S. government
and military were engaged in an aggressive anti-trafficking campaign.
“Contractors provide crucial support for the U.S. military and are perceived
internationally as an extension of the military.” 5 Congress repeatedly
expressed concern that failure to hold U.S. military contractors accountable for
human trafficking overseas undermines U.S. foreign policy.
       This case substantially implicates the interests of the United States,
both domestically and abroad. While these considerable connections to the
United States may not be dispositive to the extraterritoriality inquiry, they are
of critical importance to analyzing the focus of the ATS. At a minimum, they
counsel a hard look at any domestic conduct alleged on the part of the
defendant. It simply contravenes the focus of the ATS to disregard these facts
entirely.
       B. Application of the “Touch and Concern” Test to the
          Summary Judgment Record
       Properly applying the “touch and concern” test here leads to the
conclusion that Plaintiffs have adduced sufficient evidence of domestic conduct
relevant to the alleged law of nations violation to displace the presumption
against extraterritorial application of the ATS. Plaintiffs contend that the



       5Amici curiae retired U.S. military officers explain that during the events at issue,
the United States retained both exclusive control of the Al Asad Airbase and practical control
over Iraqi territory. Although this may not be sufficient to render Al Asad de facto territory
of the United States, it most certainly implicates the United States in KBR’s conduct at Al
Asad.
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                                  No. 15-20225
district court’s analysis of the evidence in the summary judgment record was
improper. I agree.
      Plaintiffs allege a number of actions by KBR occurring in the United
States that form part of the alleged law of nations violations on which their
ATS claims are based. Plaintiffs allege that KBR is directly liable for the torts
of human trafficking and forced labor. In support of their allegations, Plaintiffs
submitted evidence of U.S.-based conduct by KBR that evinced their
participation in a transnational trafficking scheme that ensnared Plaintiffs.
Specifically, Plaintiffs offered that KBR transferred payments to the labor
broker, Daoud, from the United States, using New York banks. These
payments were made pursuant to KBR’s subcontract with Daoud, the Master
Agreement of which had been executed by a U.S.-based KBR employee located
in Houston. Daoud was the only approved source for obtaining third-country
national (“TCN”) temporary laborers at the Al Asad Airbase. The majority
states that Plaintiffs “failed to connect the alleged international law violations
to these payments or demonstrate how such payments—by themselves—
demonstrate that KBR’s U.S.-based employees actually engaged in trafficking
the Deceased or forcing Plaintiff Gurung to work on its base.” But no
inferential leap is required to find payment for trafficked labor to be an action
critical to the operation of a global trafficking scheme. This is domestic conduct
relevant to the alleged law of nations violation.
      Plaintiffs have also offered evidence raising the inference that U.S.-
based employees knew about the human rights abuses by Daoud and KBR
overseas while KBR continued to use Daoud as a supplier of cheap labor. On
this point, the majority summarily adopts the district court’s conclusion that
Plaintiffs’ evidence of KBR’s knowledge “only implicated KBR’s operations
overseas.” Plaintiffs assert, however, that they did present evidence of
knowledge implicating KBR’s U.S. operations. But the district court
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                                   No. 15-20225
improperly weighed this evidence against other evidence and drew conflicting
inferences therefrom. See Haverda v. Hays Cty., 723 F.3d 586, 591 (5th Cir.
2013) (“A court considering a motion for summary judgment must . . . draw all
reasonable inferences in favor of the nonmoving party and may not make
credibility determinations or weigh the evidence. In addition, a court must
disregard all evidence favorable to the moving party that the jury is not
required to believe.” (internal quotations and citations omitted)).
      In a footnote, the district court noted that Plaintiffs’ “most damning piece
of evidence” was a decision by a U.S.-based employee to terminate a consultant
working for KBR at Al Asad after he complained regarding the treatment of
third-country nationals employed by Daoud, including, quite pertinently,
Plaintiffs in this suit. The district court, however, discounted this evidence of
“U.S.-based complicity” because the U.S. employee who decided to “pull” the
consultant   from    Al   Asad   simultaneously     requested    an   independent
investigation into the consultant’s complaints. Moreover, the district court
made no mention of other evidence that two KBR employees from Houston,
including an investigator, flew to the Middle East to threaten the consultant
with termination following the escalation of his complaints.
      And the record demonstrates that this was not the only complaint of
abuses at Al Asad that made its way to the United States. The district court
noted but assigned no significance to evidence that “complaints from a U.S.
Marine regarding ill treatment of third-country nationals at Al Asad were
forwarded through KBR’s U.S.-based employees to on-site base staff.” The
email message, titled “Problem with Halliburton Subcontractor in Iraq,” was
forwarded with the comment, “If true, fixe [sic] it, if not, ignore it.”
      Furthermore, these specific incidents occurred against the backdrop of
media reports and growing international concern regarding potential human
trafficking and other labor abuses by U.S. military contractors in Iraq, as well
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                                      No. 15-20225
as an aggressive anti-trafficking campaign by the U.S. military and agencies
including the Department of Defense, targeted at U.S. military contractors. 6 It
defies reason to conclude that all KBR employees in the U.S. were oblivious to
these controversies. But Plaintiffs’ theory does not rely on inference alone.
       Plaintiffs offered evidence that KBR’s U.S.-based employees managed
KBR’s responses to press and governmental inquiries into human trafficking.
For example, in response to a May 2004 New York Times inquiry regarding
human trafficking, a U.S.-based employee wrote to his colleagues: “[T]he press
continues to dig up these stories and Houston insists on answering each one.”
       U.S.-based employees also were involved in fielding questions from Time
Magazine’s New Delhi Bureau after the Indian government in May 2004
requested clarification from the U.S. government concerning reports that
Indian nationals working at Al Asad wished to return home but “were being
compelled to continue to remain in Iraq against their will.” The Indian
Ambassador had lodged a formal complaint specifically mentioning Daoud’s
delay in repatriating third-country nationals who wished to return home and
KBR’s “abdication of responsibility.” Time’s questions were forwarded in the
KBR email chain along with suggested responses. Some examples include:
       [H]ow much responsibility does Halliburton accept for what
       essentially amounts to human trafficking by your subcontractors?
       Will you be investigating? [L]egal needs to address . . . but we
       should probably make a general statement that we do not know that



       6 For example, in 2002, President Bush announced that “[t]he United States hereby
adopts a ‘zero tolerance’ policy regarding U.S. Government employees and contractor
personnel representing the United States abroad who engage in trafficking in persons.”
President George W. Bush, National Security Presidential Directive-22 (Dec. 16, 2002),
available at http://www.combat-trafficking.army.mil/documents/policy/NSPD-22.pdf). The
directive required departments and agencies to investigate and punish, as appropriate, those
personnel who engage in trafficking. Id. at 4. Pursuant to this policy, the Department of
Defense implemented specific procedures to combat trafficking on military bases, including
vigorous anti-trafficking investigations.
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                                         No. 15-20225
       these men were employed by any KBR subcontractor, that KBR is
       not the only contractor in Iraq. . . .

       What is your response to the Indian workers’ claims that they were
       “slaves”? I’d probably say something like: We cannot respond to
       this. This issue needs to be address [sic] to the firm that employed
       them.
       In July 2004, the Washington Post published an article describing KBR’s
frequent use of debt bondage in Iraq, after which the Department of Defense
immediately implemented measures requiring contractors to meet minimum
compensation levels, create individual employment contracts, and establish
other procedures to eliminate trafficking and forced labor. Despite such high-
profile inquiries and governmental pressure, KBR continued to employ Daoud
as its labor broker for staffing needs at Al Asad.
       At a minimum, the evidence tends to show that some U.S.-based
employees knew about the allegations of abuses embroiling KBR’s overseas
operations. Further, drawing all reasonable inferences in Plaintiffs’ favor, a
jury could conclude on this record that U.S. employees failed to properly
investigate these accusations of human rights abuses by KBR overseas and
either willfully ignored evidence of such abuses or actively sought to cover up
the misconduct. Cf. Al Shimari, 758 F.3d at 522, 531 (finding this type of
domestic      conduct       sufficient     to    displace      the    presumption         against
extraterritoriality). The district court erred in concluding that this evidence
failed to raise a genuine dispute of material fact sufficient to overcome KBR’s
motion for summary judgment. 7



       7 The majority states that “Plaintiffs effectively concede” that they failed to introduce any
evidence indicating that KBR’s U.S.-based employees were aware of Daoud’s recruitment
practices or worked to prevent those practices from coming to light or prevent their
discontinuance because Plaintiffs argue that they “‘would have specifically alleged such conduct
by U.S.-based KBR employees’ had they been permitted to amend their complaint.” In light of
the aforementioned evidence in the record, I fail to see how Plaintiffs’ request for leave to amend
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                                         No. 15-20225
                                                II.
       The majority also affirms the district court’s decision to deny Plaintiffs
leave to amend on futility grounds. I disagree that Plaintiffs’ proposed
amendments would necessarily be futile. First, there is already evidence of
relevant domestic conduct in the record, which was prepared well before
discovery closed. Allowing leave to amend for the parties to conduct further
discovery targeted at domestic conduct sufficient to satisfy Kiobel’s “touch and
concern” test would be reasonable and not clearly an exercise of futility.
Second, Plaintiffs’ alternative grounds for amendment—to allege a theory of
aiding and abetting in the United States—would state a plausible claim for
relief even under the majority’s restrictive interpretation of the “touch and
concern” test; consequently, amendment would not have been futile.
           Leave to Amend for Further Factual Development
       Rule 15 governs motions to amend made before trial and provides that
“[t]he court should freely give leave when justice so requires.” Thomas v.
Chevron U.S.A., Inc., 832 F.3d 586, 590 (5th Cir. 2016) (quoting Fed. R. Civ. P.
15(a)(2)). When the denial of leave to amend is based on grounds of futility, we
apply the 12(b)(6) standard to review the sufficiency of the complaint. If the
allegations are “‘enough to raise a right to relief above the speculative level’
and [the] claim for relief is plausible on its face,’ . . . amendment would not
have been futile.” Id. at 593 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)) (additional citations omitted).
       The district court stated that Plaintiffs’ leave to amend their complaint
in light of Kiobel would be futile because the court’s “conclusion that the
relevant conduct by KBR and Daoud occurred outside of the territory of the




their complaint to specifically allege these facts functions as a concession that evidence in support
of these facts does not exist.
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                                No. 15-20225
United States” was based on the summary judgment record, and not on the
pleadings. The district court’s conclusion, however, is based on its erroneous
determination that evidence of domestic conduct in the summary judgment
record was immaterial. If the district court had properly deemed this evidence
material, it could not have concluded that Plaintiffs’ allegations, accepted as
true, “lacked sufficient factual matter” to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks and citation omitted).
      Moreover, Plaintiffs’ counsel clarified at oral argument that the parties
were in the middle of discovery when the Kiobel decision issued. All discovery
up to that point had been taken prior to Kiobel and therefore was not focused
on U.S.-based conduct. The entire summary judgment record was prepared
prior to Kiobel, on the basis of which the district court, without a hearing,
decided that Kiobel mandated dismissal of Plaintiffs’ ATS claims.
      Plaintiffs argue that they should have been permitted to amend their
complaint to allege that U.S.-based managers had control and supervision over
the labor flow and knew about the trafficking and did nothing to stop it. The
district court had already found that Plaintiffs presented sufficient evidence
that “KBR had the authority to exercise control, and did exercise said control,
over Daoud’s recruitment and supply of laborers.” Specifically, Plaintiffs
sought to amend their complaint to allege that:
      KBR managers in the United States knew of the use of labor
      brokers and their practices, received reports of wrongdoing, at all
      times had power to take corrective action, but declined to do so;
      that managers in the United States were involved when there was
      conflict or controversy concerning KBR’s operations in Iraq,
      including incidents regarding subcontractors and/or third country
      nationals, and that KBR managers in the United States had
      ultimate authority over such issues.



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                                  No. 15-20225
As discussed above, it is my view that these actions, if borne out by the
evidence, constitute “relevant conduct” to the alleged international law
violations for which Plaintiffs assert KBR should be held directly liable, and
that this relevant conduct is sufficient to satisfy Kiobel’s “touch and concern”
test. Plaintiffs have already pointed to evidence in the record tending to
support these contentions. It is plausible that further reasonable discovery, if
permitted, would uncover more evidence of a similar nature. Accordingly,
Plaintiffs’ proposed allegations to satisfy Kiobel are “enough to raise a right to
relief above the speculative level,” Twombly, 550 U.S. at 555, and would not
have been futile.
         Leave to Amend to Allege Aiding and Abetting in the United
         States
      Even accepting the majority’s limited reading of Kiobel’s “touch and
concern” language, it is not apparent that amendment would have been futile.
In the alternative, Plaintiffs sought to amend to allege aiding and abetting in
the United States in light of Kiobel. Concluding that Plaintiffs’ theory of
indirect liability would have been futile, the majority states, “Plaintiffs argue
they would be able to allege facts that satisfy Al Shimari, but Al Shimari is
not the test. . . . [O]ur approach requires analysis of the conduct relevant to the
statute’s ‘focus.’ See Morrison, 561 U.S. at 266.” But Plaintiffs’ aiding and
abetting claim does not rely on Al Shimari. And this is a plausible claim even
under the majority’s restrictive reading of Kiobel.
      Plaintiffs assert that they should have been permitted to add allegations
of aiding and abetting in the United States because post-Kiobel “[c]ourts have
uniformly concluded that when the U.S.-based conduct itself constitutes a
violation of the ATS, such as aiding and abetting a violation from the United
States, the touch and concern test is satisfied.”



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                                  No. 15-20225
        As support, Plaintiffs cite the Second Circuit’s decision in Mastafa, 770
F.3d at 185, whose approach to the “touch and concern” test the majority
purports to follow. In Mastafa, the Second Circuit held that “relevant conduct”
for purposes of the “touch and concern” test is “the conduct of the defendant
which is alleged by plaintiff to be either a direct violation of the law of nations
or . . . conduct that constitutes aiding and abetting another’s violation of the
law of nations.” Id. In other words, “relevant conduct” is conduct that is itself
“sufficient to violate an international law norm [satisfying] Sosa’s
requirements of definiteness and acceptance among civilized nations.” Kiobel,
133 S. Ct. at 1670 (Alito, J., concurring). In Mastafa, there were allegations
that the defendants engaged in financial transactions in the United States,
some through a New York bank account, which indirectly financed the alleged
international law violations—torture by agents of the Saddam Hussein regime
in Iraq. 770 F.3d at 191. The Second Circuit found these transactions to be
“non-conclusory conduct that appears to ‘touch and concern’ the United States
with sufficient force to displace the presumption against extraterritoriality[.]”
Id. (alterations omitted). Nevertheless, because the Second Circuit had
adopted a purposeful mens rea standard for aiding and abetting under the ATS,
the Mastafa court determined that the conduct would fall short of that
standard and could not be relied upon to displace the presumption. Id. at 192–
93.
        Plaintiffs here have pled and offered evidence of similar U.S.-based
transactions, specifically, KBR’s payments to Daoud from the United States,
using New York banks. Therefore, if Plaintiffs are able to offer evidence
satisfying the mens rea standard for aiding and abetting, this conduct would
appear to satisfy even the narrow “touch and concern” test.
        Unlike the Second Circuit, our Court has not settled on the proper mens
rea standard for aiding and abetting liability under the ATS. A split exists
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                                   No. 15-20225
among other circuits that have reached the issue as to whether the standard
is purpose or a lesser standard akin to knowledge. Compare Presbyterian
Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259 (2d Cir. 2009)
(purpose); Aziz v. Alcolac, Inc., 658 F.3d 388, 398 (4th Cir. 2011) (following
Talisman in adopting purpose standard) with Doe v. Exxon Mobil Corp., 654
F.3d 11, 39 (D.C. Cir. 2011), vacated, 527 F. App’x 7 (D.C. Cir. 2013)
(knowledge). In Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1024 (9th Cir. 2014),
the Ninth Circuit declined to decide the mens rea standard, finding that the
plaintiffs’ allegations would satisfy either standard. It is also unnecessary to
reach the issue here because Plaintiffs’ proposed allegations would satisfy even
the more stringent purpose standard.
      The Ninth Circuit’s analysis in Doe I is instructive. In Doe I, the plaintiffs
were former child slaves who were forced to harvest cocoa on the Ivory Coast.
766 F.3d at 1017. The defendants maintained and protected a steady supply of
cocoa through buyer/seller relationships with Ivorian cocoa farmers. Id. By
virtue of their economic leverage, they effectively controlled the production of
Ivorian cocoa. Id. The complaint alleged that they economically benefitted from
the use of child slavery, could have stopped or limited the use of child slave
labor by their suppliers, did not use their control to do so, but instead offered
support that facilitated it. Id. at 1025. The Ninth Circuit held that these
allegations supported the inference that defendants “acted with the purpose to
facilitate child slavery.” Id. at 1024.
      The Doe I court was careful to note that merely doing business with the
suppliers would not satisfy the purpose standard. The court found, however,
that the defendants’ alleged plan to benefit from the use of child slave labor as
a means of reducing their production costs distinguished the case from other
ATS decisions where the purpose standard was not met. Id. at 1024–25. In
those cases, the defendants profited by doing business with known human
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                                 No. 15-20225
rights violators, but were not alleged to have benefited in any way from the
underlying human rights violations. Id. at 1024 (discussing Talisman Energy,
Inc., 582 F.3d at 262–64 and Aziz, 658 F.3d at 394, 401). In contrast, the Doe I
defendants allegedly received a direct benefit from the commission of the
international law violation, which bolstered the allegation that they acted with
the purpose to support it. Id.
      The allegations here also support the inference that Defendants acted
with the purpose of supporting trafficking and forced labor. Plaintiffs allege
that KBR “willfully and purposefully formed an enterprise with the goal of
procuring cheap labor and increasing profits.” Plaintiffs provided evidence that
KBR both knew about Daoud’s recruitment practices and had the authority to
exercise control over them, and did exercise said control. KBR exercised an
even greater level of control over the labor flow than the defendants did in Doe
I. Plaintiffs propose to allege further that U.S.-based managers had control and
supervision of the labor flow, knew about the trafficking, and did nothing to
stop it. They have already presented evidence that U.S.-based managers
received multiple complaints of misconduct, including one concerning these
Plaintiffs, and made a decision to investigate and terminate the employee who
complained. Courts have found the place of decision-making significant to the
relevant conduct inquiry when plaintiffs allege indirect liability. See, e.g.,
Drummond, 782 F.3d at 597 (relevant conduct inquiry extends to place of
decision-making as opposed to site of actual violation); Doe v. Exxon Mobil
Corp., No. CV 01-1357 (RCL), 2015 WL 5042118, at *14 (D.D.C. July 6, 2015)
(“Decisions to provide assistance that will have a substantial effect on a
violation of customary international law are part of a course of conduct that
gives rise to a claim for aiding and abetting under the ATS. Therefore, the site
of these decisions is relevant to the Court’s application of the presumption
against extraterritoriality and the touch and concern test.”).
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                                  No. 15-20225
      Similar to the allegations in Doe I, Plaintiffs allege that KBR received a
direct benefit from the commission of the international law violations.
Plaintiffs would allege various actions in the United States that directly
facilitated the violations, including payments to the labor supplier, decisions
that perpetuated the wrongdoing, and efforts to conceal it. These allegations
would support the inference that Defendants acted with the purpose of
facilitating trafficking and forced labor. Plaintiffs’ proposed allegations state a
plausible claim for aiding and abetting in the United States. It was error for
the district court to deny leave to amend as futile.
      Accordingly, I respectfully dissent in part.




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