Supreme Court Expands
Corporate Human Rights Case, Avoids Corporate Liability Question
03/05/12 06:10
The Supreme Court on
Monday afternoon took the unusual action of ordering reargument in the case heard last weekthat has been brought against a
multinational oil corporation for aiding and abetting human rights violations
in Nigeria.
Monday's order,
however, pushes aside the question of corporate liability to address a less
politically explosive, but much more consequential question: whether any entity
-- individual, state, corporation -- can be brought to justice in U.S. courts
for abuses committed abroad.
That question, though,
was not before the justices last week. In fact, mining giant Rio Tinto has submitted a petition to the justices in a similar case that asks the Court to take on the
extraterritoriality issue.
Kiobel's corporate
liability question, thus, created a quandary for the Court: If the justices
were to rule for corporate immunity in Kiobel, then they would
have to dispose of Rio Tinto on the same grounds -- and
that would prevent the Court from taking on the broader question of the law's
overseas reach.
Monday's order
wriggles the Court out of that pickle while also serving to avert the public
relations disaster that a ruling for corporate immunity would foist upon
the Court, given its ruling two years ago in Citizens United that determined
corporations were persons entitled to the First Amendment right to spend
unlimited sums during political campaigns.
Feldman said, now that
the conservative Justice Samuel Alito has replaced the moderate Justice
Sandra Day O'Connor.
Briefing will be
completed by the end of June. No reargument date has been set. The specific
question the justices put to the parties is "[w]hether and under what
circumstances the Alien Tort Statute ... allows courts to recognize a cause of
action for violations of the law of nations occurring within the territory of a
sovereign other than the United States."
The order is here.
The Court gave no
reason for its action, but at its private Conference last week, it had examined
a new case involving that 223-year-old law that raised directly the question of
whether it applied to overseas conduct — that is, the issue of
“extraterritoriality.” That other case was Rio Tinto
PLC, et al., v. Sarei, et al. (11-649). When the
orders from Friday’s Conference were released Monday morning, there was no
mention of that case. Four hours later, the new order
emerged. The Justices
faced the option of granting
the Rio Tinto case and essentially starting over in
interpreting the ATS, or expanding
the review of the Kiobel case. They chose the
second option, with the effect of putting the case over to the Term
starting October 1.
The Kiobel parties
are to file their brief by May 3, with the oil companies involved due to file
their response by June 4. A reply brief is due by June 29. Amici also
may file added briefs as dictated by Court rules.
In addition to the
extraterritoriality question, the Court also seemed to be promising a ruling on
another issue under ATS: can
a party that is being sued be challenged not for directly
engaging in human rights abuses, but for “aiding and abetting” someone else who did so. That
question appears to be within the part of Monday’s order that called for briefs
to address “what circumstances” can
be alleged under ATS. That was another of the questions that had
been posed in theRio Tinto case, and it was a question posed by
Justice Antonin Scalia at last week’s oral argument. A ruling on the
“circumstances” that may be the target of an ATS case would also potentially
include whether corporations may be targeted, it would appear.
While the question the
Court raised for lawyers appeared to focus explicitly on the meaning of the
law, it is at least conceivable — if not very likely — that the Court might go
so far as to question in the new round whether Congress has the
constitutional authority to pass a law authorizing a lawsuit in which
both sides are non-citizens and the misconduct occurred entirely overseas.
At last week’s argument, Justice Samuel A. Alito, Jr., asked: “Is there an
Article III source of jurisdiction for a lawsuit like this?…What’s the
constitutional basis for a lawsuit like this, where an alien is suing an
alien?” The Court, of course, has a long tradition of not deciding
constitutional issues if it can decide a case on other grounds, and it may well
follow that tradition in this instance.
(DO- if Luis Henkin were around … )
The new order was
another, vivid illustration of the tendency of the “Roberts Court” to
take on the broadest kind of controversy in cases brought to
it. The current Term of the Court is quite literally filled
with cases of a broad sweep, including the constitutionality of the new federal
health care law and the power of states to restrict the activities within their
borders of undocumented immigrants. And, for next Term, the Court had
already taken on the abiding question of whether it is unconstitutional for
public colleges and universities to use race in selecting their entering
classes of students. In addition, there is a strong chance that the
Court next Term could be reexamining its controversial ruling in Citizens
United v. Federal Election Commission in a new case from Montana —
that is, if it does not dispose of that case by a summary ruling this Term,
which is a possibility.
The Court’s order in
the Kiobel case made no mention of another case on corporate
liability for human rights violations that also was argued last Tuesday —Mohamad
v. Palestinian Authority (docket 11-88). That case, however,
involves an entirely different law — the Torture Victim Protection Act of 1992
— and the issue is whether a U.S. citizen can sue a foreign political
organization for such atrocities. The Mohamad case asks
the Court whether the word “individual” as the target of a TVPA lawsuit
includes a political organization or another non-human entity, including a
corporation. Presumably, the Court can go ahead and decide that
issue without waiting for its review of the scope of the Alien Tort
Statute. In fact, at last Tuesday’s argument, there were strong
indications that the Court was unmoved by the notion that “individuals” means
anything other than human beings.
It is quite unusual
for the Court, after briefing and argument on a case, to put it over until its
next Term. But it is not unprecedented: in fact, the Court’s Citizens
United ruling on campaign finance was put off to a following Term, and
expanded in scope. The result was a much more sweeping case than the one
that reached the Court initially.
Monday’s order almost
certainly have the support of at least five Justices, although this is not
spelled out in the formal rules of the Court. The Court does
not reveal how its members vote on such an issue. It takes the votes of
four Justices to hear a case in the first instance, but disposition after that
very likely depends upon majority support; the reasoning, if not spelled out in
the order, may vary among the Justices in such a majority, however.
