U.S.Supreme Court To Consider Another Case Regarding Corporate Liability for Assisting Torture or Extrajudicial Killing

U.S. Supreme Court Building

On February 28th, the U.S. Supreme Court will hear oral arguments on the following issue in a case from the U.S. Court of Appeals for the District of Columbia, Mohamad v. Palestinian Authority (Sup. Ct. No. 11-88):

  • Whether the Torture Victim Protection Act [TVPA], 28 U.S.C. § 1350 note § 2(a), permits actions against defendants which are not natural persons.

The TVPA provides a civil cause of action for money damages by an “individual” who is a victim of torture or by his or her representative for extrajudicial killing against the “individual” who committed the wrong.

The D.C. Circuit’s panel of three judges unanimously affirmed the dismissal of a TVPA complaint against the Palestinian Authority. That court stated, “Because the Congress did not define the term ‘individual’ in the TVPA, we give the word its ordinary meaning, . . . which typically encompasses only natural persons and not corporations or other organizations . . . . Notably, the Dictionary Act, which provides guidance in ‘determining the meaning of any Act of Congress,’ strongly implies the word individual does not comprise organizations because it defines ‘person’ to include ‘corporations, companies, associations, firms, partnerships, societies, … as well as individuals.’ ‘ (Emphasis in original.)

The D.C. Circuit concluded, “The Congress used the word ‘individual’ [in the TVPA] to denote only natural persons. The liability provision of the statute uses the word ‘individual’ five times in the same sentences—four times to refer to the victim of torture or extrajudicial killing, which could be only a natural person, and once to the perpetrator of the torture or killing.  The [plaintiffs-appellants] . . .  advance no cogent reason, and we see none, to think the term ‘individual’ has a different meaning when referring to the victim as opposed to the perpetrator.”

On October 17, 2011, the Supreme court granted the plaintiffs-petitioners’ petition for a writ of certiorari to review this decision.

Copies of the Supreme Court briefs of the parties and most of the eight amici curiae supporting the petitioners and the three amici supporting the defendants (including the U.S. Government) are available online. One of the three amici supporting the defendants was by the U.S. Government urging affirmance of the D.C. Circuit on essentially the same grounds enunciated by that court.

As previously stated, I find the D.C. Circuit opinion persuasive and believe the Supreme Court will affirm that court and hold that corporations are not liable under the TVPA.

This is a companion case to Kiobel v. Royal Dutch Petroleum Co. (Shell) that was discussed in posts on February 25th and 26th and that also will be argued on February 28th. The Supreme Court’s resolution of both of these cases is expected by the end of the current term at the end of June 2012.

This summary illustrates the importance of this issue for the parties, for the enforcement of international human rights and for governments and businesses around the world. Nevertheless, remember that this is a case of statutory interpretation, and at any time the Congress with a presidential signature could amend the statute to make corporate liability express or to exclude such liability specifically.

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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.

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