Alien Tort Statute: Important Cases Heading to U.S. Supreme Court

On July 8, 2011, the U.S. Court of Appeals for the District of Columbia Circuit decided an important case under the Alien Tort Statute (ATS) that is headed for the U.S. Supreme Court.

In Doe v. Exxon Mobil Corp., the D.C. Circuit held, 2 to 1, that corporations may be held liable for aiding and abetting human rights violations under the ATS. The plaintiffs were Indonesian villagers who accused Exxon Mobil of aiding and abetting murder, torture and rape by Indonesian soldiers acting under the corporation’s direction to protect its natural-gas operations in that country.[1]

Late last year the U.S. Court of Appeals for the Second Circuit in New York City reached the opposite conclusion, 2 to 1, in Kiobel v. Royal Dutch Petroleum Co., another ATS case, this one by Nigerians against Royal Dutch Petroleum Co. for alleged complicity in crimes against humanity.[2]

In Kiobel, the plaintiffs already have asked the U.S. Supreme Court for review of that case,[3] and it is likely that Exxon Mobil will do as well in the other case. Since an important factor in the Supreme Court’s decision to grant such review (granting the writ of certiorari) is a split in decisions by the courts of appeal on important issues of federal law,[4] the Court, in my opinion, is highly likely to grant such review in both cases and to consider them on the merits next Term (October 2011-September 2012).

The ATS provides that the U.S. district courts have “original jurisdiction of any civil action by an alien [non-U.S. citizen] for a tort only, committed in violation of the law of nations or a treaty of the United States.”[5]

In future posts, I will review (a) the adoption of the ATS in 1789 and its use through 1979; (b) the interpretation of the ATS by the Supreme Court in 2004; (c) the use of the ATS by the lower federal courts since 1980; (d) the issue of aiding and abetting in ATS cases; and (e) the issue of corporate liability in ATS cases.


[1] Doe v. Exxon Mobil Corp., No. 09-7125 (D.C. Cir. July 8, 2011), http://www.cadc.uscourts.gov/internet/opinions.nsf; Reuters, Exxon to Face Lawsuit Over Rights Violations in Indonesia, N.Y. Times (July 8, 2011); Kendall, Exxon Hit by Reversal in Human-Rights Case, W.S.J. (July 9, 2011).

[2]  Kiobel v. Royal Dutch Pet. Co., 621 F.3d 111 (2d Cir. 2010), pet. for reh’g denied, 642 F.3d 268 (2d Cir. 2011), pet. for reh’g en banc denied, 642 F.3d 379 (2d Cir. 2011), pet. for cert. filed (No. 10-1491 June 6, 2011).

[3]  Id.

[4]  U.S. Sup. Ct. Rule 10 (a): “A petition for a writ of certiorari will be granted only for compelling  reasons.  The  following,  although  neither controlling  nor fully measuring  the Court’s discretion,  indicate  the  character of the  reasons  the  Court  considers: (a) a United States court of appeals has entered a decision  in  conflict  with  the  decision  of  another  United States  court  of  appeals  on  the  same  important matter. . . .”

[5] 28 U.S.C. § 1350.

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dwkcommentaries

As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

3 thoughts on “Alien Tort Statute: Important Cases Heading to U.S. Supreme Court”

  1. Comment: D.C. Circuit Case Regarding Corporate Liability Under the Alien Tort Statute Is Stayed Pending U.S. Supreme Court Decision in Kiobel

    The post “Alien Tort Statute: Important Cases Heading to U.S. Supreme Court” (July 9, 2011), stated that on July 8, 2011, in Doe v. Exxon Mobil Corp., the D.C. Circuit held, 2 to 1, that corporations may be held liable for aiding and abetting human rights violations under the ATS. The plaintiffs were Indonesian villagers who accused Exxon Mobil of aiding and abetting murder, torture and rape by Indonesian soldiers acting under the corporation’s direction to protect its natural-gas operations in that country.

    Thereafter the defendants-appellees filed a motion for reconsideration en banc, and on November 14, 2011, the D.C. Circuit, per curiam, ordered “that consideration of the petition of appellees/cross-appellants for rehearing en banc be deferred pending further order of the court” and that the “parties are directed to file motions to govern future proceedings within 30 days of the date the Supreme Court issues its decision in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), cert. granted, 79 U.S.L.W. 3728 (U.S. Oct.17, 2011) (No. 10-1491); and Mohamad v. Rajoub, 634 F.3d 604 (D.C. Cir. 2011), cert.granted, 80 U.S.L.W. 3128 (U.S. Oct. 17, 2011) (No. 11-88).”

    Although the Supreme Court on April 18, 2012, unanimously decided in the Mohamad case that legal entities, including corporations, are not liable under the Torture Victims Protection Act, there have been no filings in the D.C. Circuit in the Exxon case after the previously mentioned per curiam order.

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