United States Supreme Court Unanimously Rules That Only Natural Persons - Not Organizations - Can Be Liable Under Torture Victim Protection Act

Introduction

On April 18, 2012, the United States Supreme Court issued a unanimous decision in Mohamad v. Palestinian Authority,1 holding that only natural persons can be held liable under the Torture Victim Protection Act of 1991 (TVPA or Act). The TVPA, enacted in 1992 and codified as a note to the Alien Tort Statute, establishes liability against "[a]n individual who . . . subjects an individual to torture [or] extrajudicial killing" while under "actual or apparent authority, or color of law, of any foreign nation."2 Since its enactment, the TVPA has been invoked on dozens of occasions against individual, corporate, and other organizational defendants in a variety of settings.3 In Mohamad, the Court ruled that the word "individual" in the TVPA is confined to natural persons, with the result that corporate and other organizational defendants cannot be found liable under the statute. This ruling resolves a Circuit split in the US federal appellate courts in which the US Courts of Appeal for the Fourth, Ninth, and DC Circuits had limited TVPA liability to natural persons,4 while the US Court of Appeals for the Eleventh Circuit had recognized corporate liability under the Act.5

In February, the Supreme Court heard oral argument in Mohamad v. Palestinian Authority, on the same day the Court heard oral argument in a companion case, Kiobel v. Royal Dutch Petroleum Co.6 In Kiobel, the Court is considering whether corporations can be held liable under the Alien Tort Statute (ATS). Read Steptoe's previous advisory on the Court's deliberations in Kiobel here. The ATS provides jurisdiction for a broader set of causes of action – violations of the "law of nations or a treaty of the United States" – than the TVPA, under which causes of action are limited to torture and extrajudicial killing.7 Only foreign plaintiffs may sue under the ATS, however, while the TVPA is available to both US and foreign plaintiffs.8 Although enacted in 1789, the ATS has been used with increasing frequency since 1980 to assert claims alleging human rights violations against foreign officials and multinational companies, which have been named as defendants in more than 180 ATS cases.

Kiobel has not yet been decided. In March, the Supreme Court instructed the parties in Kiobel to submit an additional round of briefing later this spring on the issue of the extraterritorial application of the ATS. Because the text of the ATS does not limit liability to "individuals", it is unlikely the Court's decision in Mohamad will affect its ruling in Kiobel as to whether the ATS extends to corporate defendants.

Background

Mohamad v. Palestinian Authority arises from the imprisonment, torture, and killing of Azzam Rahim, a naturalized United States citizen visiting the West Bank, by Palestinian Authority intelligence officers. In 2005, Rahim's relatives brought a lawsuit under the TVPA in the US District Court for the District of Columbia against the Palestinian Authority and the Palestinian Liberation Organization for torture and extrajudicial killing. The federal district...