Supreme Court Shows Interest in D.C. Circuit’s Torture Victim Protection Act Opinion

After its “long conference,” the Supreme Court relisted Mohamad v. Rajoub, No. 11-88 (S. Ct.) [Mohamad v. Rajoub, No. 09-7109 (D.C. Cir. Mar. 18, 2011) (Ginsburg, J., joined by Tatel & Garland, JJ.)] for reconsideration of the cert petition at a future conference.

In Rajoub, the D.C. Circuit held that the Palestinian Authority and the PLO are not amenable to suit under the Torture Victim Protection Act (“TVPA”), which provides a cause of action against “[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.” 28 U.S.C. § 1350, note. Based on the plain meaning and structure of the Act, the Court held that the word “individual” denotes only natural persons.

The Rajoub decision is in tension with the Court’s more recent opinion in Doe v. Exxon Mobil Corp., No. 09-7125 (D.C. Cir. 2011) (Rogers, J., joined by Tatel, J., with partial dissent by Kavanaugh, J.), which held that the related Alien Tort Statute (“ATS” or “ATCA”) does provide a cause of action against corporations, even for claims of torture and extrajudicial killing. In his dissent in Exxon, Judge Kavanaugh noted “the bizarre result that would ensue if aliens–but not U.S. citizens–could bring suit in U.S. court for the same injuries caused by the same defendant.”

The Supreme Court also relisted a Ninth Circuit case, which agrees with Rajoub that the TVPA does not support corporate liability, Bowoto v. Chevron Corp., No. 10-1536 (S. Ct.) [621 F.3d 1116 (9th Cir. 2010)], and a  Second Circuit case, which held–contrary to Exxon–that the ATS does not support corporate liability, Kiobel v. Royal Dutch Petroleum Co., No. 10-1536 (S. Ct.) [621 F.3d 111, 120 (2d Cir. 2010)].

(Hat Tip: John Elwood, Relist Watch, SCOTUSblog (Oct. 5, 2011))


  • John Bellinger, Supreme Court Grants Cert in Kiobel, Lawfare (Oct. 17, 2011) (“The Supreme Court also granted cert in the Mohamad v. Rajoub, in which the DC Circuit held (joining most other circuits) that the Torture Victims Protection Act applies only to offenses perpetrated by individuals, not by other entities.”)

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