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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 2, 2004 Decided June 11, 2004

No. 03-7110

THE HERERO PEOPLE’S REPARATIONS CORPORATION, ET AL.,

APPELLANTS

v.

DEUTSCHE BANK, A.G. AND

WOERMANN LINE, D/B/A DEUTSCHE AFRIKA–LINIEN

GMBLT & COMPANY,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(01cv01868)

Philip M. Musolino argued the cause and filed the briefs

for appellants.

Jeffrey Barist argued the cause for appellee Deutsche

Bank, A.G. With him on the brief was Jeffrey L. Nagel.

David S. Cohen entered an appearance.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Alan Kanzer argued the cause for appellee Woermann

Line. With him on the brief was Torsten M. Kracht. Dwight

C. Smith III entered an appearance.

Before: HENDERSON, RANDOLPH, and ROBERTS, Circuit

Judges.

RANDOLPH, Circuit Judge: Those who appeal the dismissal

of their complaint for failure to state a claim ordinarily argue

their claim has merit. In this case, the appellants seek to

convince us their claim had far less merit than the district

court believed; that it was, in fact, so insubstantial that

federal question jurisdiction did not exist. A ruling to this

effect would send the case back to the Superior Court of the

District of Columbia where it began and would, appellants

hope, prevent preclusion of a nearly identical complaint they

filed in the Southern District of New York.

Appellants are the Herero Tribe of Namibia, members of

the Tribe, and an association representing its interests.

Their complaint alleged that in the late 19th and early 20th

centuries Imperial Germany launched a campaign of atrocities against the Herero using torture, slavery, and genocide.

The Herero sought damages from Deutsche Bank and Woermann Line, German companies whom they accused of participating in the atrocities.

The voluminous complaint, filed in Superior Court, did not

identify the specific law supplying the cause of action. It did

state that ‘‘[w]ell recognized principles of District of Columbia

law, United States law, and international law provide this

court with jurisdictionTTTT’’ Later references to law mentioned the defendants’ violations of ‘‘international law’’ and

commission of ‘‘crimes against humanity.’’

Defendants removed the complaint to federal district court.

The Herero moved to remand. They did not contest the

existence of federal jurisdiction but merely questioned the

formal adequacy of the removal petition. The district court

denied the motion, ruling that the removal petition was

adequate, and that the complaint’s international law claims

presented a federal question. The defendants then moved to
3

dismiss. The district court granted Woermann Line’s motion

to dismiss for lack of personal jurisdiction, FED. R. CIV. P.

12(b)(2), ruling that the company did not have sufficient

contacts with the District of Columbia to satisfy the District’s

long-arm statute, D.C. CODE § 13–423. The following day,

the court granted Deutsche Bank’s motion to dismiss for

failure to state a claim, FED. R. CIV. P. 12(b)(6), ruling that

federal common law provides no private cause of action for

violations of customary international law.1

The Herero argue that the absence of a cause of action

deprived the district court of subject matter jurisdiction.

They say that once the district court concluded no cause of

action existed, it should have remanded the case to the

Superior Court pursuant to 28 U.S.C. § 1447. Generally, the

question whether a cause of action exists calls for a judgment

on the merits, not jurisdiction. Bell v. Hood, 327 U.S. 678

(1946); Silverman v. Barry, 727 F.2d 1121, 1124–25 (D.C. Cir.

1984). If a plaintiff purports to assert a federal claim, the

district court has federal question jurisdiction unless the

claim is ‘‘immaterial and made solely for the purpose of

obtaining jurisdiction or TTT wholly insubstantial and frivolous.’’ Bell v. Hood, 327 U.S. at 682–83. See generally 13B

CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3564 (2d ed. 1984). Since the Herero

did not want to be in federal court, we can be confident that

they did not assert an immaterial federal claim for the

purpose of obtaining federal jurisdiction. The question therefore is whether their claim was ‘‘wholly insubstantial and

frivolous.’’

Before we decide that question, we must determine whether the Herero actually raised any federal claims, substantial

or otherwise. Unlike Bell v. Hood, the complaint in this case

did not explicitly assert that the claims were grounded in

federal law. But that cannot be dispositive. State law, like

1 Some courts have held that the Alien Tort Act, 28 U.S.C.

§ 1350, provides such a cause of action. See Al Odah v. United

States, 321 F.3d 1134, 1145–46 (D.C. Cir. 2003) (Randolph, J.,

concurring) (collecting cases). But the Herero explicitly disclaimed

reliance on that statute.
4

the federal rules, may not require plaintiffs to identify the

legal basis for their cause of action, so complaints arising

under the laws of the United States, and thus removable

under § 1441, will not necessarily mention federal law. See

Metro. Life Ins. Co. v. Taylor, 481 U.S. 58 (1987); Avco Corp.

v. Machinists, 390 U.S. 557 (1968); Sylgab Steel & Wire

Corp. v. Strickland Transp. Co., 270 F. Supp. 264 (E.D.N.Y.

1967) (Weinstein, J.). Several factors indicate that the Herero were asserting federal claims. First, international law was

the only law the complaint accused the defendants of violating. Such claims would only be cognizable under federal law.

See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425–

27 (1964). Second, in their motion to remand, the Herero did

not deny they were asserting federal claims, and they did not

suggest any non-federal claims they might otherwise be asserting. Third, in their oppositions to the motions to dismiss,

the Herero explicitly asserted that their claims were founded

on federal common law or international law. They presented

no non-federal theories.

A claim is too ‘‘insubstantial and frivolous’’ to support

federal question jurisdiction when it is ‘‘obviously without

merit’’ or when ‘‘its unsoundness so clearly results from the

previous decisions of [the Supreme Court] as to foreclose the

subject and leave no room for the inference that the questions

sought to be raised can be the subject of controversy.’’

Hagans v. Lavine, 415 U.S. 528, 538 (1974) (citations omitted); Silverman, 727 F.2d at 1124. It is not ‘‘insubstantial

and frivolous’’ to assert that federal common law should

provide a private cause of action for violations of customary

international law. True, this circuit has not embraced the

idea. See Tel–Oren v. Libyan Arab Republic, 726 F.2d 774,

779 n.4 (D.C. Cir. 1984) (Edwards, J.); id. at 799 (Bork, J.);

id. at 823–27 (Robb, J.); Al Odah v. United States, 321 F.3d

1134, 1147–49 (D.C. Cir. 2003) (Randolph, J., concurring).

But the Supreme Court has yet to rule on the subject, and

the theory has received support in court decisions and law

review articles. See, e.g., Filartiga v. Pena–Irala, 630 F.2d

876, 886–87 (2d Cir. 1980); Hawkins v. Comparet–Cassani, 33

F. Supp. 2d 1244, 1255 (C.D. Cal. 1999) (citing Bivens v. Six
5

Unknown Named Agents of the Fed. Bureau of Narcotics,

403 U.S. 388 (1971)), rev’d in part on other grounds, 251 F.3d

1230 (9th Cir. 2001); White v. Paulsen, 997 F. Supp. 1380,

1383–84 (E.D. Wash 1998) (same); Harold Hongju Koh,

Transnational Public Law Litigation, 100 YALE L.J. 2347,

2385–86 (1991); Kenneth C. Randall, Federal Questions and

the Human Rights Paradigm, 73 MINN. L. REV. 349 (1988).

That makes this case indistinguishable from Bell v. Hood. In

both cases, the complaints alleged clear violations of law –

there the Fourth Amendment, here customary international

law – presenting only the previously unresolved question

whether federal common law provided a remedy.

The Herero rely on the fact that, in Tel-Oren, Judges

Edwards and Bork characterized their rejection of the federal

common law theory as jurisdictional. Id. at 779 n.4 (Edwards, J.); id. at 799 (Bork, J.). However, the meritsjurisdiction distinction did not arise in that case, and neither

judge sought to distinguish Bell or to apply its ‘‘insubstantial

and frivolous’’ exception. ‘‘[I]t is impossible to believe that

the Court intended by mere stroke of the pen to obliterate a

distinction [between jurisdiction and merits] that it had consistently drawn for many decades.’’ Fogel v. Chestnutt, 668

F.2d 100, 107 (2d Cir. 1981) (Friendly, J.) (referring to

Kissinger v. Reporters Comm. for Freedom of the Press, 445

U.S. 136 (1980)). Instead, it appears the Tel-Oren opinions

were written as if the line between jurisdiction and merits

was unimportant to the outcome. See id. at 105–07.

The complaint in this case also stated an arguable claim

under the Alien Tort Act, 28 U.S.C. § 1350. While this court

has not decided exactly what the Alien Tort Act means, see Al

Odah v. United States, 321 F.3d 1134, 1145–50 (D.C. Cir.

2003) (Randolph, J., concurring), it is not frivolous to assert

that it creates a cause of action. Several other circuits have

ruled that it does. See id. at 1145–46 (collecting cases).

After removal, the Herero sought to disclaim reliance on the

Alien Tort Act. But a plaintiff’s change in legal theory

cannot defeat jurisdiction if a federal question appeared on

the face of the complaint. See Felice v. Sever, 985 F.2d 1221

(3d Cir. 1993). The complaint here stated a nonfrivolous
6

federal claim under one theory or another, and the district

court therefore did not err in ruling on the merits.2

The Herero also appeal the dismissal of Woermann Line

for lack of personal jurisdiction.3

 They argue the district

court could have exercised its ‘‘universal jurisdiction’’ over the

company. Universal jurisdiction is a doctrine of international

law allowing states to define and punish certain crimes considered to be of ‘‘universal concern.’’ See United States v.

Rezaq, 134 F.3d 1121, 1133 (D.C. Cir. 1998); RESTATEMENT

(THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 404

(1987). Even if the concept applied in a civil case without any

authorizing statute, under our system a federal court generally cannot exercise personal jurisdiction over a defendant

unless FED. R. CIV. P. 4 authorizes service of process. Omni

Capital Int’l v. Rudolph Wolff & Co., 484 U.S. 97, 104 (1987).

The Herero no longer allege that jurisdiction is appropriate

under the District of Columbia long-arm statute, see FED. R.

CIV. P. 4(k)(1)(A), nor do they allege that service is ‘‘authorized by a statute of the United States,’’ see FED. R. CIV. P.

4(k)(1)(D). While they do argue that jurisdiction exists under

FED. R. CIV. P. 4(k)(2), they did not raise that point below.

2 The Herero argue that, even so, the district court abused its

discretion by denying them leave to amend the complaint to meet

the defendants’ objections. But the Herero never properly moved

to amend, either before or after the district court’s decision. See

Gov’t of Guam v. Am. President Lines, 28 F.3d 142, 149–51 (D.C.

Cir. 1994); Confederate Mem’l Ass’n v. Hines, 995 F.2d 295, 299–

300 (D.C. Cir. 1993).

3 Woermann Line suggests that, if we affirm the district court’s

Rule 12(b)(6) dismissal, we need not reach the personal jurisdiction

issue. However, Woermann Line’s dismissal for lack of personal

jurisdiction came before the district court’s ruling on the merits.

Since Woermann Line was not a party when the district court

dismissed the complaint, the second ruling has no effect on its

dispute with the Herero. If Woermann Line wanted to enjoy the

possible preclusive effects of the 12(b)(6) dismissal, it should have

waived lack of personal jurisdiction.
7

This leaves the Herero without a statutory basis for asserting

jurisdiction over Woermann Line.

Affirmed.