Doe Run Defendants Seek Cert for Foreign Relations Abstention
February 20, 2025
A pending cert petition in Doe Run Resources v. Reid asks the Supreme Court to dismiss tort claims brought by foreign plaintiffs against a U.S. company, its subsidiaries, and various corporate officers based on foreign relations abstention. The Peruvian plaintiffs allege they were seriously harmed as children by toxic substances, including toxic levels of lead, emitted by a metallurgical refining complex in Peru owned by the defendants. (The allegations are described at greater length here.) Last fall, the Eighth Circuit affirmed on interlocutory appeal the district court’s refusal to dismiss the case based on foreign relations concerns. (Disclosure: Bill Dodge and I submitted an amicus brief supporting the plaintiffs before the Eighth Circuit.)
The defendants now seek review of that interlocutory decision, backed by multiple amicus briefs in support of their petition. The plaintiffs’ brief in opposition (BIO), however, lays out a clear case for denying certiorari. The petition has been distributed for the February 28 conference.
Why Cert Should Be Denied
I have invested significant scholarly energy in arguing that courts should reject the idea of abstention based on foreign relations concerns (often called “international comity abstention” in court opinions). But outside of law review articles, foreign relations abstention just isn’t a thing. The plaintiffs’ BIO correctly note that only four appellate decisions in the last thirty years have even arguably applied this form of abstention.
The Eighth Circuit was careful in its decision not to foreclose its potential applicability in future cases—it just held that this case wasn’t an appropriate candidate for such dismissal. That posture makes this case a poor vehicle for weighing the viability of foreign relations abstention: even if the Supreme Court were to endorse a doctrine of foreign relations abstention, it would likely make no difference in the outcome of this case.
That’s because this case does not implicate heightened sovereign interests. The Peruvian government’s interest has been muted and mixed, and the U.S. government has not weighed in. In contrast, the few times the appellate courts have invoked foreign relations abstention, the foreign government has been emphatic in its concerns, which has typically led the U.S. government to file a statement of interest as well. This private tort dispute is a far cry from cases about Holocaust restitution or the Fukushima nuclear disaster, where litigation in U.S. courts could undermine foreign governments’ efforts to fairly settle claims affecting large portions of their populations.
Red Herrings
The defendants try to manufacture a circuit split by conflating foreign relations abstention with deference to foreign parallel pleadings. As the BIO explains, these are two distinct doctrines. It is not that some circuits require a heightened showing for foreign relations abstention in the absence of parallel litigation; rather, they simply don’t recognize abstention in transnational cases outside the context of parallel litigation. Only the Ninth and the Eleventh Circuit have clearly held that federal courts can decline their jurisdiction in light of foreign relations concerns. And the Eleventh Circuit has subsequently cabined that discretion to “rare,” even “calamitous” cases.
The defendants also assert that “it is obvious that state law does not apply extraterritorially.” This is wrong on several levels. State laws can and do at times apply extraterritorially. The reach of state statutes is determined in part by whether the state has recognized its own version of the presumption against extraterritoriality; their reach may also be limited by the Dormant Commerce Clause. But the Doe Run plaintiffs have pled state common law claims, which are not subject to a presumption against extraterritoriality. The defendants’ real complaint seems to be that the district court, after conducting a choice of law analysis, determined that Missouri common law applied to most of the plaintiffs’ claims. But that choice of law determination was not subject to the interlocutory appeal and is not before the Supreme Court at this stage.
Finally, the defendants invoke Nestlé USA, Inc. v. Doe (2021) to suggest that this case has too little to do with the United States. Nestlé is doctrinally irrelevant to this case, which is about state common law regulating state businesses, not about judges implying causes of action under a federal statute that is cabined by the federal presumption against extraterritoriality. And even if Nestlé were applicable, the plaintiffs have alleged much more conduct in the United States than the generic corporate decisionmaking that Nestlé deemed insufficient. According to the plaintiffs, the U.S. defendants maintained close financial control from the United States over the Peruvian subsidiary, purposefully keeping it undercapitalized so that it was never able to implement the pollution controls it had promised the Peruvian government.
Conclusion
The plaintiffs in this case have come to the United States to sue the key defendants at their home in Missouri, the “one clear and certain forum in which a corporate defendant may be sued on any and all claims” (as promised by Daimler AG v. Bauman (2014)). They have litigated the case for more than a decade, and the district court has carefully considered all the defendants’ arguments to dismiss the case and to apply their preferred law. The judge even reconsidered the defendants’ motion to dismiss for foreign relations abstention and, in an abundance of caution, certified that decision to the Eighth Circuit for interlocutory review. The Eighth Circuit in turn held that even if it were to endorse foreign relations abstention, it would not apply to a purely private dispute like this one in which no government has credibly expressed concerns. Whatever the merits of foreign relations abstention, this would not be the right case for evaluating them.