Renewing speculation about the future of corporate liability for human rights abuses, last week the Supreme Court held unanimously in Mohamad v. Palestinian Authority that the Torture Victims Protection Act (“TVPA") cannot be used to sue organizations, and by extension, corporations. The Court, however, did not limit the type of individuals subject to suit under the Act, thus a corporation’s officers or employees may still find themselves open to suit under the TVPA.
The Mohamad petitioners were representatives of the estate of Azzam Rahim, an American citizen who was tortured and killed overseas while in the custody of Palestinian Authority intelligence officers. Asserting claims of torture and extrajudicial killing, petitioners used the TVPA to sue both the Palestinian Authority and the Palestine Liberation Organization, arguing that Congress’s use of the word “individual” in the TVPA showed that it had contemplated that the Act could be used to sue both “nonsovereign organizations” and natural persons.
Rejecting this argument, the Court explained that Congress’s use of “individual” in the Act in fact demonstrated its intention to limit the TVPA’s application to permit suits only against “natural persons” (i.e., human beings).
Under the TVPA:
An individual who, under actual or apparent authority, or color of law, of any foreign nation –
(1) Subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or
(2) Subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death.
Taking a highly textual approach to its analysis of this provision, the Court emphasized the importance of the ordinary meaning of “individual,” as well as the word’s statutory context:
The [TVPA’s] liability provision uses the word ‘individual’ five times in the same sentence: once to refer to the perpetrator (i.e., the defendant) and four times to refer to the victim. … Only a natural person can be a victim of torture or extrajudicial killing. ‘Since there is a presumption that a given term is used to mean the same thing throughout a statute,’ … it is difficult indeed to conclude that Congress employed the term ‘individual’ four times in one sentence to refer to a natural person and once to refer to a natural person and any nonsovereign organization.
Although the “natural person” interpretation of “individual” here puts an end to TVPA suits against corporations or legal persons, it certainly still permits TVPA suits against individuals such as corporate officers, directors, or employees.
In addition, despite the bold headlines inspired by the ruling, Mohamad does not provide much insight into how the Court might rule this fall in Kiobel v. Royal Dutch Petroleum, where the Court is expected to address whether corporations may be held liable under the Alien Tort Statute ("ATS") and whether the ATS may be applied extraterritorially. Mohamad was argued the same day as Kiobel and the TVPA and the ATS have historical and legal links, but the Court mentioned Kiobel only once in Mohamad, and even then it did so only to contrast the language of the ATS with that of the TVPA.
Specifically, the Court noted that “regardless of whether corporate entities can be held liable in a federal common-law action brought under [the ATS]” (as questioned in Kiobel), the ATS “offers no comparative value” for interpreting the TVPA’s use of “individual” because nowhere in the ATS is “individual” used to describe potential defendants. This observation should mean that the holding that the TVPA does not apply to corporations is equally of “no comparative value” to the Court’s future analysis of the applicability of the ATS to corporations.
Mohamad may have freed corporate entities from TVPA suits, but until the Supreme Court issues its ruling in Kiobel, they remain potentially liable under the ATS. Furthermore, human individuals, such as corporate officers and employees, remain open to suit under both statutes.