Kiobel Gets a Kissing Cousin: DC Circuit Holds TVPA Does Not Apply To Non-Natural Persons
Much has been made of the Second Circuit's holding in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 120 (2d Cir. 2010) that corporations cannot be sued for alleged violations of customary international law under the Alien Tort Statute. Well, last Friday the DC Circuit held that only natural persons -- not corporations or even governing bodies -- can be sued under the Torture Victim Protection Act, 28 U.S.C. sec. 1350. See Mohamad v. Rajoub, Nos. 09-7109, 09-7158, Slip op. (D.C. Cir. Mar. 18, 2011).
In Rajoub, the family of a man allegedly tortured and killed in the custody of the Palestinian Authority in Palestine sued both the Palestinian Authority and the Palestinian Liberation Organization under the TVPA and federal common law. The TVPA provides that "[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation" subjects an individual to torture or extrajudicial killing shall be liable for damages to the individual so harmed, his legal representative, or any person who could bring a wrongful death action. 28 U.S.C. sec. 1350, note sec. 2(a).
The defendants moved to dismiss, arguing that the term "individual" in the statute precludes suits against non-natural persons (i.e., juridical entities). The trial court granted the motion, and the DC Circuit affirmed. The court noted that the ordinary meaning of the word "typically encompasses only natural persons and not corporations or other organizations." Slip op. at 3 (citation omitted). It even referred to the Dictionary Act for support, noting that it defines a "person" "'to include 'corporations, companies, associations, firms, partnerships, societies . . . as well as individuals.'" Id. (citations omitted; emphasis in original).
Plaintiffs argued that Congress enacted the TVPA to codify a cause of action recognzied under the Alien Tort Statute. The court noted that the Eleventh Circuit has said that corporate defendants can be subject to ATS liability, and that the Second Circuit, in Kiobel, held that they could not. The court then observed, in a footnote, that that precise issue is before the DC Circuit in a case argued at the end of January. Slip op. at 3-4 (citing Doe v. Exxon Mobil Corp., No. 09-7125 (D.C. Cir. argued Jan. 25, 2011)).
But the court ultimately ignored this argument because of the structure of the statute, which confirmed the meaning of its plain language. The TVPA refers to an "individual" five times in the relevant section: once to refer to the person who is liable, and four times to refer to the decedent. The court reasoned that it would be inconsistent to allow the "individual" being sued to be a corporation or other non-natural person when clearly the "individual" being tortured or killed in the same sentence could only be a natural person. Moreover, the statute's provision allowing a "person" (rather than an "individual") who could sue for wrongful death to have standing to bring a claim makes sense when one understands that "person" could include juridical entities like an estate, but "individual" could not.
Accordingly, the court held that non-natural persons cannot be sued under the TVPA.
The court quickly dispatched plaintiffs' argument that they should be able to assert a claim under federal common law against the defendants, citing the Supreme Court's admonition in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) against broadly interpreting new international causes of action into federal common law.
Rajoub is an important opinion because it raises further impediments to suing corporations -- or even governments -- for alleged human rights abuses in U.S. courts. The TVPA applies to torture or killing by individuals, according to the court. And this court's reading of the TVPA only makes the position articulated in Kiobel more reasonable.
