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"). 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. In November 2009, the district court granted KBR's motion to dismiss Plaintiffs' common law negligence claims. KBR moved for interlocutory review of the district court's TVPRA ruling under 28 U.S.C. [section] 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.
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. The appeal followed. *191
Plaintiffs contended 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 countered that Plaintiffs' allegations of misconduct in foreign countries are barred by the presumption against extraterritoriality. *192
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, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010) (quoting EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991)). *193
A two-step inquiry governs the presumption's application to a statute. RJR Nabisco, Inc. v. European Cmty.,_U.S._, 136 S.Ct. 2090, 2101, 195 L.Ed.2d 476 (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. *193
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. The Court did not foreclose the possibility that there may be circumstances in which the bar...