3Accordingly, it is a grievous error to transmute a crucial jurisdictional inquiry into a factualmerits inquiry.
’s impact on SMUG’s ATS claims remains a threshold jurisdictional question,a question of law that goes to the very power of this Court to hear this case.
In re Heddendorf
, 263F.2d 887, 889 (1st Cir. 1959) (denial of motion to dismiss for lack of subject matter jurisdiction presents question of law appropriate for interlocutory appeal);
United States v. Lahey Clinic Hosp., Inc.
, 399 F.3d 1, 7 (1st Cir. 2005) (same).
’s Extraterritorial Limitation Upon the Alien Tort Statute is a SufficientlyPure Question of Law to Warrant Interlocutory Appeal.
Compounding its first error, SMUG next contends that no interlocutory appeals are possibleafter
, because the application of a legal standard is never a “pure” question of law. (Dkt. 69at 10-14). This is just plain wrong. “
Decisions holding that the application of a legal standard isa controlling question of law within the meaning of section 1292(b) are numerous
In re Text Messaging Antitrust Litig.
, 630 F.3d 622, 626 (7th Cir. 2010) (P
, J.) (emphasis added)(collecting cases from six circuits). In
, the Seventh Circuit accepted an
CIV.A. 09-1289 BAH, 2013 WL 2370594, *15 (D.D.C. May 31, 2013) (“[a]s a result [of
the Courtdoes not have subject-matter jurisdiction
to hear such claims, and they must be dismissed”) (emphasisadded) (vacating default judgment and dismissing ATS claims for lack of subject matter jurisdiction);
Ahmed-Al-Khalifa v. Salvation Army
, 3:13CV289-WS, 2013 WL 2432947, *3 (N.D. Fla. June 3, 2013) (“[i]nlight of
the ATS cannot confer subject matter jurisdiction
upon Plaintiff's claims”)
(emphasisadded) (dismissing ATS claims for lack of subject matter jurisdiction);
Giraldo v. Drummond Co., Inc.
, 2:09-CV-1041-RDP, 2013 WL 3873960, *8, n.6 (N.D. Ala. July 25, 2013) (“Plaintiffs can no more contend thatapproval in the United States of conduct committed abroad
provides a basis for jurisdiction
[under theATS] than could the plaintiffs in
contend that fraudulent acts in the United States establish jurisdiction when the focus of the claim—purchases and sales of securities—occurred entirely abroad”)(emphasis added);
Al Shimari v. CACI Int'l, Inc.
, 1:08-CV-827 GBL/JFA, 2013 WL 3229720, *1 (E.D. Va.June 25, 2013) (“the Court holds that
it lacks ATS jurisdiction
over Plaintiffs' claims … the Court cannotapply the ATS extraterritorially
to extend jurisdiction
over Plaintiffs' claims.
precludes such aresult
. Therefore, Plaintiffs' claims under the ATS are
dismissed for want of jurisdiction
Ahmed-Al-Khalifa v. Obama
, 1:13-CV-49-MW/GRJ, 2013 WL 3797287 (N.D. Fla. July 19, 2013)(“
[i]n light of
the ATS cannot confer subject-matter jurisdiction
onto Plaintiff's claims”)(emphasis added) (dismissing ATS claims for lack of subject matter jurisdiction);
Mwani v. Laden
, CIV.A.99-125 JMF, 2013 WL 2325166, *2, 5 (D.D.C. May 29, 2013) (“I requested briefing from the plaintiffsregarding
whether or not subject matter jurisdiction remained over their claims
… I find that
there is subject matter jurisdiction
over this case under the ATS, butthat
this finding presents a controlling question of law as to which there may be a substantial differenceof opinion, such that this decision should be immediately appealed to the Court of Appeals
under 28U.S.C. § 1292”) (emphasis added).
Case 3:12-cv-30051-MAP Document 73 Filed 09/24/13 Page 3 of 13