Mohamad v. Palestinian Authority, et al. (11-88)
Oral argument: Feb. 28, 2012
Appealed from: United States Court of Appeals for the District of Columbia (March 18, 2011)
Petitioner Asid Mohamad, on behalf of the family and estate of Azzam Rahim sued the Palestinian Authority and the Palestinian Liberation Organization pursuant to the Torture Victim Protection Act, alleging that these organizations were liable for the torture and extrajudicial killing of Rahim. Mohamad asserts that the Act permits plaintiffs to sue private organizations and corporations, as well as natural persons. In contrast, the Palestinian Authority and the Palestinian Liberation Organization argue that the statute's use of the term "individual" explicitly exempts private organizations from the Act's liability provision. This case will determine the extent to which victims of torture may bring suit against organizations that may be responsible for acts of torture. The decision may have repercussions for both foreign policy and international businesses.
Whether the Torture Victim Protection Act, 28 U.S.C. § 1350 note § 2(a), permits actions against defendants which are not natural persons.
Does the Torture Victim Protection Act allow victims of torture to sue non-state organizations, or may a victim only bring suit against individual persons?
Azzam Rahim, a Palestinian-born American citizen, was visiting the West Bank in 1995 when several men who identified themselves as security police forced him into an unmarked car. See Mohamad v. Rajoub, 634 F.3d 604, 605–06 (D.C. Cir. 2011). These men took Rahim to a prison in Jericho where he was tortured and killed. A later statement issued by the U.S. Department of State reported that Rahim had "died in the custody of PA [Palestinian Authority] intelligence officers in Jericho." See id. at 606. Subsequently, Mohamad filed suit against the Palestinian Authority and the Palestinian Liberation Organization (collectively "the Palestinian Organizations") on behalf of Rahim's estate and family for damages under the Torture Victim Protection Act ("TVPA"), 28 U.S.C. § 1350. See id. at 605.
The Torture Victim Protection Act allows both aliens and U.S. citizens to bring a lawsuit against "individuals" committing acts of torture and extrajudicial killing. See 137 Cong. Rec. H11245 (daily ed. Nov. 25, 1991) (Statement of Rep. Yatron). The TVPA was proposed in response to a judge's question of whether the Alien Tort Claims Act, 28 U.S.C. § 1350 (alternately referred to as the Alien Tort Statute), included a private right of action for victims of torture that took place in other countries. See S. Rep. No 102-249; H.R. Rep. 102-367 (1991). The statute fulfills U.S. obligations towards human rights abuses under the United Nations Charter and other international agreements. See Torture Victim Protection Act, Pub. L. 102–256, Mar. 12, 1992.
The petitioners initially filed suit in the United States District Court for the Southern District of New York. See Mohamad, 634 F.3d at 606. The Palestinian organizations did not answer the complaint, and the district court granted Mohamad a default judgment. See Mohamad, 634 F.3d at 606. Subsequently, the Palestinian Organizations moved to vacate the default judgment and to dismiss the complaint for lack of personal jurisdiction. See id. In response, Mohamad moved to have the case transferred to the United States District Court for the District of Columbia. See id. The District Court for the District of Columbia then dismissed the case, holding that Mohamad did not have a cause of action under the Torture Victims Protection Act or federal common law. See id. The United States Court of Appeals for the District of Columbia Circuit affirmed, holding that the use of the term “individual” in the law meant that only natural persons could be liable under the TVPA. See id. at 607. Therefore, it held that there was no cause of action against the Palestinian Organizations because neither is a natural person. See id. at 609.
The Supreme Court will determine whether legal entities, including organizations and corporations, are liable for torture and extrajudicial killings under the Torture Victims Protection Act (“TVPA”). See Question Presented. Petitioner, Asid Mohamad, argues that the TVPA applies to non-state organizations as well as individual human beings. See Brief for Petitioner, Asid Mohamad at 11. Respondents, the Palestinian Organizations, argue that the word “individual” in the law means that victims can only sue natural persons. See Brief for Respondent, Palestinian Authority, et al. at 14.
Amici Juan Mendez, the U.N. Special Rapporteur on Torture, and former Senator Arlen Specter argue that failure to hold legal entities liable for torture would result in victims having no legal recourse against their torturers in the United States. See Brief of Amicus Curiae Juan Mendez in Support of Petitioner at 35–36; Brief of Amicus Curiae Former Sen. Arlen Specter, et al. in Support of Petitioner at 18. Mohamad notes that many victims do not know the person who performed the actual act of torture, while organizations often take credit for these acts. See Brief for Petitioner at 38–39. Mohamad also asserts that individuals, unlike corporations, often will not have sufficient contacts with the United States to permit courts to have jurisdiction over them, and further, even if sufficient contacts could be established, individuals will seldom have enough assets to pay damages. See id. at 39–40. Mendez argues that suits against legal entities are necessary to eradicate torture and that reading the TVPA to forbid such suits would undermine state obligations to achieve this goal. See Brief for Amicus Curiae Juan Mendez at 32–33. Mendez asserts that preventing suits against legal entities would result in an amnesty for torture and extrajudicial killing, because of the ease with which torturers could structure their organizations to avoid liability. See id. at 37.
The Palestinian Organizations argue that exempting groups from liability would not unduly limit the legal remedies of victims because the TVPA is already limited in its application; the TVPA only encompasses actions committed under the color of law. See Brief for Respondent at 39–40. the Palestinian Organizations assert that the TVPA already exemptsthat actions carried out by completely private groups, such as terrorist organizations and state entities and that refusing to apply the TVPA to groups like the Palestinian Organizations here would not significantly curtail the scope of the TVPAy. See id. Moreover, the Palestinian Organizations contend that victims often can identify officials who authorized acts of torture and will still be able to file suits against those persons. See id. at 37.
The Palestinian Organizations argue that the Court should construe the TVPA narrowly to avoid creating foreign policy problems. See Brief for Respondent at 32. The Palestinian Organizations argue that broadly interpreting the TVPA risks offending foreign policy because Mohamad’s interpretation imposes American law on extraterritorial acts. See id. at 31–32. The American Petroleum Institute additionally argues that allowing liability for corporations under the TVPA would discourage corporations from investing in less developed countries. See Brief of Amicus Curiae the American Petroleum Institute, et al. in Support of Neither Party at 24–25. They argue that without such investments these regions cannot grow their economies, and will find political stability more difficult to achieve. See id. The API further believes that allowing such suits would prevent foreign investment in the United States, as companies would avoid developing contacts that would subject them to suit. See id. at 24–25.
However, Joseph E. Stiglitz, an economics professor and expert in economic theory and global economic development, denies that corporate liability under the TVPA would be bad for businesses. See Brief of Amicus Curiae Joseph E. Stiglitz in Support of Petitioner at 1–2. He asserts that in a modern economy, tort law provides necessary incentives for corporations to monitor their employees' behavior. See id. at 9. Further, Stiglitz cites studies showing that corporate liability under the Alien Tort Statute has not reduced investment in less developed countries. See id. at 10–11. Instead, he contends that studies show a correlation between respect for civil liberties and human rights and improved economic performance. See id. at 12. He also notes that many “corporate good citizens,” corporations whose behavior already comports with the TVPA, will actually gain an advantage by no longer having to compete with corporations which lack their moral scruples. See id. at 18.
This case presents the issue of whether legal entities, such as private organizations or corporations, may be held liable for torture and extrajudicial killings under the Torture Victim Protection Act, 28 U.S.C. § 1350 . See Question Presented.
Does the meaning of the term “individual," as used in the TVPA, encompass organizations and corporations?
Mohamad argues that the dictionary definition of the term “individual” includes not only natural persons, but also private entities. See Brief for Petitioner at 17–18. He argues that when compared to the ordinary dictionary definition of “person,” a term generally accepted as encompassing legal entities, the term “individual,” as used in the TVPA, is even more suggestive of organizations. See id. at 20. Mohamad contends that historically, the Court has interpreted “individual” in a similar matter to "person” to include non-natural entities. See id. at 19. Mohamad asserts that in Clinton v. City of New York, the Supreme Court specifically interpreted the term “individual” to include non-natural legal entities. See id. Mohamad states that if Congress had intended to exclude private entities from TVPA liability, it could have done so clearly by specifying that the act applied only to natural persons. See id. at 21–22 . Mohamad argues that Congress’ choice to use the term “individual” instead of “person” simply was a means to specifically avoid creating liability for foreign states under the act. See id. at 20-21. Mohamad contends that the Court of Appeals relied too heavily on The Dictionary Act’s definitions of “person” and “individual.” See id. at 23.
Respondents, the Palestinian Organization, argue that the plain meaning of “individual” does not extend beyond natural persons. See Brief for Respondent at 14. The Palestinian Organizations contend that the term “individual” must be given its ordinary meaning because there is no statutory definition to the contrary. See id. at 15. The Palestinian Organizations assert that under various legal and non-legal dictionary definitions, the ordinary meaning of “individual” is a single, natural person. See id. at 15-16. Additionally, the Palestinian Organizations argue that courts have traditionally interpreted "individual" to mean a natural person. See id. at 16. The Palestinian Organizations argue that, historically, when Congress wished to include private organizations within the scope of liability, it consistently used the term “person,” not “individual.” See id. at 17-19. Therefore, the Palestinian Organizations argue that because of the clear and generally accepted reading of the term “individual,” Congress had no reason to precisely defined it to exclude organization when drafting the TVPA. See id. at 17.
Do the background legal principles of the TVPA require the term “individual” to include private organizations?
Mohamad argues that because the TVPA creates a cause of action in tort based on international legal norms, the Act must be read against the backdrop of tort law. See Brief for Petitioner at 12. Mohamad asserts that because organizations are held liable for the actions of their agents under tort law, the TVPA must similarly extend liability not only to natural persons, but also to their principle organizations. See id. at 14–15. Furthermore, Mohamad contends that the TVPA must also be read in light of the international legal norms it is founded upon. See id. at 15. Mohamad argues that because international legal norms prohibiting torture and extrajudicial killings apply to all actors equally, such norms are capable of being violated by private organizations. See id. at 15. Mohamad explains that due to the strong presumption of holding organizations responsible for the actions of their agents, it goes against reason for the TVPA to provide such an exemption. See id. at 16–17.
In contrast, the Palestinian Organizations argue that Mohamad's organization liability argument was brought for the first time in his reply brief and is therefore waived. See Brief for Respondent at 47. Second, the Palestinian Organizations insist that Mohamad has overemphasized any presumption of organization liability. See id. The Palestinian Organizations contend that such presumptions arise only when a contrary statutory purpose is lacking. See id. at 48. Therefore, the Palestinian Organizations argue that because the TVPA has specifically limited liability to individuals, expanding such limited liability to organizations would go against the text of the Act, invalidating the presumption. See id.
Does the History of the TVPA show Congressional Intent to extend liability to private organizations?
Mohamad argues that Congress chose to use the term “individual” solely to exclude foreign states from liability, not to exempt private organizations. See Brief for Petitioner at 43. Amici, Amici Larry Bowoto asserts that the sole reason for substituting "individual” for “person” was not to remove organizations from the scope of liability, but to ensure that foreign governments would not be subjected to TVPA liability. See Brief of Amicus Curiae Larry Bowoto et al. in Support of Petitioners at 10. Furthermore, Bowoto contends that, aside from its stated purpose of excluding foreign states from liability, Congress has used “individual” and “person” interchangeably throughout the TVPA’s history. See id. at 10–11. Mohamad argues that according to the House and Senate Reports, the TVPA was intended to expand the Alien Tort Statute by providing a cause of action to U.S. citizens for torture and extrajudicial killings. See Brief for Petitioner at 50. Mohamad reasons that because the ATS provides for organizational liability, it follows that as an act expanding the ATS, the TVPA must also extend liability to organizations. See id. Mohamad alleges that because the Court has held that the committee reports are the authoritative source for establishing legislative intent, the Palestinian Organizations’ contrary citations to other reports are of no consequence. See id. at 44.
The Palestinian Organizations contend that because the TVPA is unambiguous, there is no reason to consult legislative history. See Brief for Respondent at 48. Alternatively, the Palestinian Organizations argue that the legislative history of the TVPA shows congressional intent to limit liability to natural persons. See Brief for Respondent at 28. The Palestinian Organizations insist that "individual" was used instead of “persons” to explicitly remove non-state organizations from TVPA liability. See id. The Palestinian Organizations explain that although earlier drafts of the TVPA used the term “person,” the phrase was ultimately replaced with “individual” during markup when Representative Leech successfully lobbied to exclude organizations from the scope of the Act. See id. The Palestinian Organizations argue that the Court commonly relies on such changes during statutory markup to determine legislative intent. See id. at 29. Additionally, the Palestinian Organizations assert that if Congress had not intended to exclude organizations from liability by choosing to use "individual," it could have simply retained the term “person” and then specifically exempted foreign states. See id. at 30.
Does the Statutory Structure of the TVPA show Congressional Intent to extend liability to private organizations?
The Palestinian Organizations argue that an organization cannot be an "individual" within the Act’s meaning because the TVPA uses "individual" to denote both the victim and the perpetrator of the torture or killing. See Brief for Respondent at 24. They argue that an organization cannot be tortured and therefore cannot be a victim of torture. See id. The Palestinian Organizations maintain that principles of statutory construction require terms within the same statute to be defined the same way and therefore Mohamad's suggested dual reading of "individual" is impermissible. See id. at 24, 28.
Mohamad contends that the structure of the TVPA's liability provision illustrates intent to hold organizations liable. See Brief for Petitioner at 25. Mohamad insists that because TVPA does not require that the principle in the agency relationship have actually performed the alleged act, the TVPA inherently adopts principles of agency liability. See id. at 26. Additionally, Mohamad argues that although organizations fundamentally cannot be victims of torture, the fact that the TVPA uses “individual” to denote perpetrators as well as victims is of no consequence. See id. at 26–27. Mohamad contends that terms may have various contextual meanings, and there are no rules of interpretation that require the identical meaning to be given to a term every time it is used. See id. at 27.
The Supreme Court must decide if non-state organizations can be held liable for acts of torture and extrajudicial killing under the Torture Victim Protection Act. Mohamad argues that the plain meaning of the statute as well as its structure and legislative history support a finding by the Court that private organizations fall within the scope of TVPA liability. The Palestinian Organizations, however, argue that holding such organizations liable violates the statutory purpose of the TVPA. The Court’s decision will greatly impact the number of suits that victims of torture and extrajudicial killings abroad can bring in United States’ courts.
Edited by: Kelly Halford
Torts Blog: Mohamad v. Rajoub - "the other case" granted by the Supreme Court & the corporate liability scorecard so far (October 18, 2011)
The American Presidency Project: Statement on Signing the Torture Victim Protection Act of 1991 (March 12, 1992)