On April 18, 2012, the United States Supreme Court issued a unanimous decision in Mohamad v. Palestinian Authority,1 holding that only natural persons can be held liable under the Torture Victim Protection Act of 1991 (TVPA or Act). The TVPA, enacted in 1992 and codified as a note to the Alien Tort Statute, establishes liability against "[a]n individual who . . . subjects an individual to torture [or] extrajudicial killing" while under "actual or apparent authority, or color of law, of any foreign nation."2 Since its enactment, the TVPA has been invoked on dozens of occasions against individual, corporate, and other organizational defendants in a variety of settings.3 In Mohamad, the Court ruled that the word "individual" in the TVPA is confined to natural persons, with the result that corporate and other organizational defendants cannot be found liable under the statute. This ruling resolves a Circuit split in the US federal appellate courts in which the US Courts of Appeal for the Fourth, Ninth, and DC Circuits had limited TVPA liability to natural persons,4 while the US Court of Appeals for the Eleventh Circuit had recognized corporate liability under the Act.5
In February, the Supreme Court heard oral argument in Mohamad v. Palestinian Authority, on the same day the Court heard oral argument in a companion case, Kiobel v. Royal Dutch Petroleum Co.6 In Kiobel, the Court is considering whether corporations can be held liable under the Alien Tort Statute (ATS). Read Steptoe's previous advisory on the Court's deliberations in Kiobel here. The ATS provides jurisdiction for a broader set of causes of action – violations of the "law of nations or a treaty of the United States" – than the TVPA, under which causes of action are limited to torture and extrajudicial killing.7 Only foreign plaintiffs may sue under the ATS, however, while the TVPA is available to both US and foreign plaintiffs.8 Although enacted in 1789, the ATS has been used with increasing frequency since 1980 to assert claims alleging human rights violations against foreign officials and multinational companies, which have been named as defendants in more than 180 ATS cases.
Kiobel has not yet been decided. In March, the Supreme Court instructed the parties in Kiobel to submit an additional round of briefing later this spring on the issue of the extraterritorial application of the ATS. Because the text of the ATS does not limit liability to "individuals", it is unlikely the Court's decision in Mohamad will affect its ruling in Kiobel as to whether the ATS extends to corporate defendants.
Mohamad v. Palestinian Authority arises from the imprisonment, torture, and killing of Azzam Rahim, a naturalized United States citizen visiting the West Bank, by Palestinian Authority intelligence officers. In 2005, Rahim's relatives brought a lawsuit under the TVPA in the US District Court for the District of Columbia against the Palestinian Authority and the Palestinian Liberation Organization for torture and extrajudicial killing. The federal district court found that the TVPA's language limiting liability to "individuals" necessarily applied to natural persons only and granted the respondents' motion to dismiss.9 The US Court of Appeals for the DC Circuit affirmed.10
In the Supreme Court, the petitioners argued that the term "individual"—which is not defined in the TVPA—extends to nonsovereign organizations as well as natural persons.11 The Court disagreed, finding that the "ordinary meaning" of the word "individual" and its context in the statute demonstrate that Congress intended the TVPA to apply only to defendants who are natural persons.12 The statute's legislative history buttressed this interpretation: While the text of the TVPA originally applied to any "person" who committed the prohibited acts, one of the TVPA's sponsors amended its text to apply to "individuals" to "make it clear" that the TVPA applies "to individuals and not to corporations."13 Justice Breyer concurred in the opinion based on his view that the word "individual" could include corporations and other organizational entities.14 He joined the Court's opinion, however, based on the legislative history of the TVPA.15
The Supreme Court's decision in Mohamad necessarily limits the scope of the TVPA by clarifying that organizational and corporate defendants fall outside the statute's reach. The decision, however, does not preclude TVPA liability for individual corporate officers, employees, and organization members who commit prohibited acts. In practice, as the Court acknowledged, it may be more difficult for plaintiffs to recover against individuals than the organizations for which they work due to challenges in identifying responsible individuals, establishing personal jurisdiction over them, and collecting judgments.16
If the Court holds in Kiobel that corporations are proper defendants in ATS cases, aliens will be able to use that statute to bring claims of torture and extrajudicial killing against corporate defendants.17 The Court's limitation of TVPA liability to natural persons in Mohamad appears unlikely to affect the Court's ruling in Kiobel on whether ATS liability extends to corporate defendants. In addressing the Mohamad petitioners' argument that the TVPA's scope of liability should be interpreted in conformity with similar federal statutes, the Court in Mohamad stated that the ATS "offers no comparative value here regardless of whether corporate entities can be held liable in a federal common-law action brought under [the ATS]."18 Several Justices appeared similarly dismissive of the Kiobel respondents' efforts to draw comparisons between the statutes: During oral argument in Kiobel, the corporate respondents cited the TVPA as evidence that an international norm of corporate liability does not exist under the ATS, in part because Congress explicitly limited TVPA liability to "individuals."19 Justice Ginsberg noted that the ATS, unlike the TVPA, does not use the words "individual" or "person,"20 and both Justices Kagan and Sotomayor stated that the TVPA was meant to supplement, and not supplant, the ATS.21 Similarly, the United States, in amicus briefs submitted in the Mohamad and Kiobel cases, argued that the TVPA limits liability to natural persons, while arguing that "corporations can be held liable in a suit based on the ATS" due to "critical differences" in the statutes.22
One concern raised during oral argument in both Kiobel and Mohamad is that a holding limiting liability to natural persons under the TVPA but extending liability to corporations under the ATS would mean that aliens could bring suit under the ATS that US citizens would be unable to bring under the TVPA. Both Justices Sotomayor and Alito called attention to this "incongruous" result. 23 It seems unlikely, however, that the result in Kiobel will turn on this observation, given the textual differences in the statutes. Rather, it appears more likely that any restriction in Kiobel on the scope of ATS liability will relate to the extraterritorial reach of the statute—an issue that appeared to concern several Justices during oral argument and on which upcoming re-briefing will focus later this spring.
Finally, regardless of the outcomes of Kiobel and Mohamad, corporate human rights-related litigation likely will continue in various forms. Plaintiffs can still bring human rights-related claims against corporate defendants in the United States using common law and other statutory claims, as well as outside the United States under various domestic enactments of international human rights laws. Pressure on companies from investors, consumers, personnel, and other stakeholders to ensure respect for human rights in their operations is unlikely to subside. Companies should, therefore, continue developing robust human rights compliance programs with a view to preventing adverse impacts on human rights, as well as avoiding the legal and reputational consequences associated with allegations of corporate human rights abuses.
1.Mohamad v. Palestinian Authority, No. 11-88, 132 S. Ct. 1702, 2012 US LEXIS 3108 (US April 18, 2012).
2.28 U.S.C. § 1350 note § 2(a).
3.See, e.g., Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164 (C.D. Cal. 2005) (suit under TVPA and Alien Tort Statute against oil and security companies); Doe v. Nestle, S.A., 748 F. Supp. 2d 1057 (C.D. Cal. 2010) (suit under TVPA and Alien Tort Statute against chocolate manufacturers for allegations of torture related to forced labor); Gonzalez-Vera v. Kissinger, 449 F.3d 1260 (D.C. Cir. 2006) (suit under TVPA and Alien Tort Statute against former US Secretary of State Henry Kissinger for alleged actions in support of the Chilean Pinochet regime).
4.Aziz v. Alcolac, Inc., 658 F. 3d 388 (4th Cir. 2011); Mohamad v. Rajoub, 634 F. 3d 604 (D.C. Cir. 2011); Bowoto v. Chevron Corp., 621 F. 3d 1116 (9th Cir. 2010).
5.Sinaltrainal v. Coca Cola Co., 578 F. 3d 1252 (11th Cir. 2009).
6.621 F.3d 111 (2d Cir. 2010), cert. granted, 80 U.S.L.W. 3237 (U.S. Oct. 17, 2011) (No. 10-1491).
7.See Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004) where the Supreme Court found that, to be actionable under the ATS, violations must be of international law norms that are "specific, universal, and obligatory". The Supreme Court cited piracy, violations of safe passage, and assaults on ambassadors as examples. Federal appellate courts have construed violations of various other international law norms as meeting this stringent standard. See, e.g., Abdullahi v. Pfizer, Inc., 562 F.3d 163, 181 (2d Cir. 2009) (nonconsensual medical experimentation); Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 258, 264 (2d Cir. 2007) (apartheid); Sarei v. Rio Tinto, PLC, 671 F.3d 736, 759, 763-64 (9th Cir. 2011), petition for cert. filed, 80 U.S.L.W. 3335 (U.S. Nov. 23, 2011) (No. 11-649) (genocide and war crimes).
8.The ATS states that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350 (emphasis added). The ATS thus limits eligible plaintiffs to aliens, while the TVPA more broadly allows an "individual"—which encompasses both aliens and US individuals—to bring suit.
9.Mohamad v. Rajoub, 664 F. Supp. 2d 20 (D.D.C. 2009).
10.Mohamad v. Rajoub, 634 F.3d. 604 (D.C. Cir. 2011).
11.Mohamad, No. 11-88, 2012 U.S. LEXIS 3108 at *8.
13.Id. at *18.
14.Id. at *21.
16.Mohamad, No. 11-88, 2012 U.S. LEXIS 3108 at *20. The TVPA also requires plaintiffs to exhaust "adequate and available remedies" in the place in which the conduct occurred before a US court will hear the claim. 28 U.S.C. § 1350 note § 2(b) (2006).
17.Courts have disagreed as to whether the TVPA effectively removes torture and extrajudicial killing from the ATS. Most courts have found that it does not, meaning that aliens would be able to sue corporate defendants for such actions under the ATS. Cf. Enahoro v. Abubakar, 408 F.3d 877, 884-85 (7th Cir. 2005) (TVPA would be "meaningless" if it did not "occupy the field" for torture claims.) with Cabello v. Fernandez-Larios, 402 F.3d 1148, 1154 (11th Cir. 2005) ("The TVPA creates no new liabilities nor does it impair rights. Rather, the TVPA extended the ATCA, which had been limited to aliens, to allow citizens of the United States to bring suits for torture and extrajudicial killings in United States courts."), Wiwa v. Royal Dutch Petroleum, No. 96 Civ. 8386(KMW), 2002 US Dist. LEXIS 3293, *11-12 (S.D.N.Y. Feb. 22, 2002) ("This Court reads Kadic I to hold that the TVPA did not preempt torture and summary execution claims under the ATCA.").
18.Mohamad, No. 11-88, 2012 U.S. LEXIS 3108 at *16.
19.Transcript of Oral Argument at 29:2–29:10, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (Feb. 28, 2012), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts.aspx.
20.Id. at 29:18–29:20.
21.Id. at 48:17–48:20; 53:5–53:7.
22.See Brief of the United States as Amicus Curiae Supporting Affirmance, at 30, Mohamad v. Palestinian Authority et al., No. 11-88 (U.S. Feb. 3, 2012); see also Brief for the United States as Amicus Curiae Supporting Petitioners, at 27 n. 16, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (U.S. Dec. 21, 2011) ("If the Court concludes that acts of torture and extrajudicial killing can be brought under the TVPA only against natural persons, that would not support a categorical rejection of corporate liability under the ATS.").
23.Transcript of Oral Argument at 42:18-19, Mohamad v. Palestinian Authority et al., No. 11-88 (Feb. 28, 2012), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts.aspx; Transcript of Oral Argument at 53:5-12, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (Feb. 28, 2012), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts.aspx.
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