Eighth Circuit Rejects Argument for Foreign-Policy Abstention
August 7, 2024
On August 1, 2024, the Eighth Circuit issued its decision in Reid v. Doe Run Resources Corp., rejecting defendants’ argument that the case should be dismissed based on international comity. As Maggie Gardner has explained in greater detail here and here, the plaintiffs in Reid are more than 1,400 Peruvian citizens who suffered harm as children from exposure to toxic substances from a smelter in Peru. The plaintiffs sued the Missouri company that effectively ran the smelter in Missouri court under Missouri law, alleging that key decisions about environmental protection were made in Missouri.
The district court held, with one exception, that Missouri law governs the dispute. The district court also refused to dismiss the case on grounds of international comity but certified that question for interlocutory appeal, which the Eighth Circuit agreed to hear. Maggie and I filed an amicus brief arguing that the Eighth Circuit should not adopt the new doctrine of foreign-policy abstention urged by the defendants. The court of appeals did not adopt that doctrine, though it did not completely foreclose the possibility in future cases.
Abstention Based on International Comity
Although the Supreme Court has never endorsed abstention based on international comity, lower courts have developed several distinct doctrines.
First, the Second Circuit recognizes a doctrine of prescriptive comity abstention that allows courts not to apply U.S. law in order to avoid a “true conflict” with foreign law.
Second, circuit courts have developed two different doctrines of adjudicative comity abstention. The most widely recognized version applies only if there is a parallel proceeding pending in foreign court and requires a showing of exceptional circumstances to warrant dismissing the U.S. action. The Second, Fourth, Sixth,Seventh, and Ninth Circuits have, with some variations, adopted this doctrine, which one might call parallel proceedings abstention.
Two circuits have recognized a quite different form of adjudicative comity abstention that is not limited to parallel proceedings. This doctrine, which one might call foreign-policy abstention, turns on three factors: (1) U.S. government interests; (2) foreign government interests; and (3) the adequacy of the alternative forum. The Eleventh Circuit first articulated this doctrine, and the Ninth Circuit later embraced it. It was this doctrine that the defendants in Reid urged the Eighth Circuit to adopt.
The Eighth Circuit’s Decision
But the Eleventh Circuit had second thoughts, stating in a later decision that that this doctrine should be reserved for “rare” cases, and it was the Eleventh Circuit’s second thoughts that the Eighth Circuit found most convincing. Quoting the Eleventh Circuit, Judge Ralph Erickson wrote: “Assuming without deciding that … international comity exists as an abstention doctrine, it must be reserved for those ‘rare (indeed often calamitous) cases in which powerful diplomatic interests of the United States and foreign sovereigns aligned in supporting dismissal.’” In other words, if the Eighth Circuit were to recognize the doctrine at all, it would do so only when both U.S. and foreign government interests strongly supported dismissal.
Defendants argued that the United States and Peru clearly expressed their interest in having environmental claims decided locally in Article 18.4 of the Peru-U.S. Trade Promotion Agreement (TPA), which requires both countries to provide “appropriate and effective access to remedies for violations of [their own] environmental laws.” But, as the Eighth Circuit noted, the “plain language” of this provision in fact “provide[s] a pathway for the plaintiffs to sue the defendants under Missouri law.” Moreover, the TPA’s implementing legislation expressly says that it does not preempt state law.
Defendants also argued that abstention was required under “traditional comity factors,” by which they meant the three factors for foreign-policy abstention noted above. Although the Eighth Circuit seemed to accept this characterization for the purposes of deciding this case, it can hardly be said that these factors are “traditional,” given that they were first articulated in 2004. Regardless, the court noted that “[n]either the State Department nor the government of Peru has submitted a declaration of its position in this case, despite requests from the parties.”
Finally, defendants tacked on an argument about extraterritoriality, citing the U.S. Supreme Court’s decision inNestlé USA, Inc. v. Doe (2021) construing the implied federal cause of action under the Alien Tort Statute. But the Eighth Circuit correctly distinguished Nestlé in two ways. First, Nestlé involved the extraterritorial application of a federal statute rather than the domestic application of state common law. Second, the plaintiffs in Reid alleged substantial domestic conduct by the defendants.
In short, this was not a “rare” case “in which powerful diplomatic interests of the United States and foreign sovereigns aligned in supporting dismissal.” At least, it was not so clearly such a case that the district court could be said to have abused its discretion, which is the standard of review that all circuits have applied to doctrines of adjudicative comity abstention. Thus, even if the Eighth Circuit were to adopt foreign-policy abstention, the district court’s decision not to abstain could not be reversed.
Against Foreign-Policy Abstention
There is a strong case for rejecting foreign-policy abstention completely. For a long version of the argument, one can read Maggie’s and my amicus brief in this case or one we filed more recently in a Second Circuit case.
The short version of the argument can be summed up in three basic points. First, federal courts have a “virtually unflagging obligation” to exercise the jurisdiction Congress has given them. As Chief Justice John Marshall observed more than two hundred years ago, federal courts “have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” As a result, the abstention doctrines that the Supreme Court has recognized are very limited, and foreign-policy abstention is not one of them.
Second, foreign-policy abstention creates separation-of-powers problems by allowing the U.S. government and foreign governments to dictate the outcomes of particular cases. In past cases, the U.S. Supreme Court has refused to make other comity doctrines turn on the views of foreign governments or of the United States.
Third, foreign-policy abstention is unnecessary. We already have a federal doctrine to decide when claims brought in federal courts would be better heard abroad. It is called forum non conveniens, and although the doctrine has flaws, it is well-established, well-understood, and non-political. The defendants in Reid initially moved to dismiss for forum non conveniens, but they later abandoned that argument. It is not clear why federal courts should invent new abstention doctrines to bail out defendants who make bad decisions.
Conclusion
Part of me wishes that the Eighth Circuit had gone all the way and rejected foreign-policy abstention outright as the Third Circuit has done. That is the right answer and the one I feel certain the Supreme Court will give if it ever addresses the question.
But the Eighth Circuit’s disposition does have the virtue of cert-proofing its decision. The Eighth Circuit said that it would have affirmed the district court’s exercise of discretion even if foreign-policy abstention were a valid doctrine. The Supreme Court rarely takes cases in which its decision would not affect the outcome. Combined with the fact that this was an interlocutory appeal, it is unlikely the Court would grant cert even if the defendants were inclined to seek it.