Skip to main content

Justice Sotomayor
In 1995, while on a visit to the West Bank, naturalized American citizen Azzaz Rahim was arrested by Palestinian Authority intelligence officers. He was taken to a prison in Jericho, where he was imprisoned, tortured, and ultimately killed by Palestinian Authority intelligence officers in Jericho.

Ten years later, Rahim's surviving relatives sued the Palestinian Authority and the Palestinian Liberation Organization under the Torture Victim Prevention Act of 1991, which allows civil suits in federal courts by citizens and non-citizens against "an individual who, under actual or apparent authority, or color of law, of any foreign nation," subjects another individual to torture or extrajudicial killing. Lower courts had divided over whether the statute authorized suit only against human persons, or against corporations and organizations as well.

Today, the Supreme Court unanimously ruled that "an individual" meant only a human being for purposes of the TVPA, affirming the ruling of the DC Circuit dismissing his relatives' claims and, as such, really impairing the ability of victims of torture to seek meaningful relief from its sponsors. As Justice Sotomayor acknowledges in the last part of the Court's opinion, this is bad for victims, but insists it's Congress that's to blame, and they knew this when they wrote it:

Petitioners’ final argument is that the Act would be rendered toothless by a construction of “individual” that limits liability to natural persons. They contend that precluding organizational liability may foreclose effective remedies for victims and their relatives for any number of reasons. Victims may be unable to identify the men and women who subjected them to torture, all the while knowing the organization for whom they work. Personal jurisdiction may be more easily established over corporate than human beings. And natural persons may be more likely than organizations to be judgment proof. Indeed, we are told that only two TVPA plaintiffs have been able to re-cover successfully against a natural person—one only after the defendant won the state lottery.

We acknowledge petitioners’ concerns about the limitations on recovery. But they are ones that Congress imposed and that we must respect. “[N]o legislation pursues its purposes at all costs,” Rodriguez v. United States, 480 U. S. 522–526 (1987) (per curiam)... We add only that Congress appeared well aware of the limited nature of the cause of action it established in the Act. See, e.g., 138 Cong. Rec. 4177 (1992) (remarks of Sen. Simpson) (noting that “as a practical matter, this legislation will result in a very small number of cases”); 137 Cong. Rec. 2671 (1991) (remarks of Sen. Specter) (“Let me emphasize that the bill is a limited measure. It is estimated that only a few of these lawsuits will ever be brought”).

The opinion of the Court is here, and before we get into what it is, a word about what it's not. This isn't the big international law case the Court heard this term; that's the Kiobel v. Royal Dutch Petroleum litigation concerning the Alien Tort Statute, which has been bounced to next term as the Court has expanded its inquiry to consider when courts can recognize a cause of action for violations of the law of nations occurring outside the United States.  The ATS case will have broader ramifications given its ability to see enforced "the law of nations" more generally; the TVPA, while limited to torture and extrajudicial killing, does allow U.S. citizens to sue as well.

And basically, Justice Sotomayor writes for the Court, when Congress says "individual," they know what that means:

Because the TVPA does not define the term “individual,” we look first to the word’s ordinary meaning. See FCC v. AT&T Inc., 562 U. S. _, _ (2011) (slip op., at 5) (“When a statute does not define a term, we typically give the phrase its ordinary meaning” (internal quotation marks omitted)). As a noun, “individual” ordinarily means “[a] human being, a person.” 7 Oxford English Dictionary 880 (2d ed. 1989); see also, e.g., Random House Dictionary of the English Language 974 (2d ed. 1987) (“a person”); Webster’s Third New International Dictionary 1152 (1986) (“a particular person”) (hereinafter Webster’s). After all, that is how we use the word in everyday parlance. We say “the individual went to the store,” “the individual left the room,” and “the individual took the car,” each time re-ferring unmistakably to a natural person. And no one, we hazard to guess, refers in normal parlance to an organization as an “individual.” Evidencing that common usage, this Court routinely uses “individual” to denote a natural person, and in particular to distinguish between a natural person and a corporation. See, e.g., Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. _, _ (2011) (slip op., at 7) (“For an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home”).
And while there are rare occurrences where a statute makes clear that an "individual" is something more, this isn't one of them:
As noted, the Act does not define “individual,” much less do so in a manner that extends the term beyond its ordinary usage. And the statutory context strengthens—not undermines—the conclusion that Congress intended to create a cause of action against natural persons alone. The Act’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. See §2(a). 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, a presumption surely at its most vigorous when a term is repeated within a given sentence,” 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.

It is also revealing that the Act holds perpetrators lia-ble for extrajudicial killing to “any person who may be a claimant in an action for wrongful death.” §2(a)(2) (emphasis added). “Person,” we have recognized, often has a broader meaning in the law than “individual,” and frequently includes nonnatural persons. We generally seek to respect Congress’ decision to use different terms to describe different categories of people or things. Our construction of “individual” to encompass solely natural persons credits Congress’ use of the disparate terms; petitioners’ construction does not.

Moreover, in a section joined by everyone except for Justice Scalia, who doesn't believe in looking at such things, Justice Sotomayor argues that the legislative history confirms this result:
The version of the TVPA that was introduced in the 100th Congress established liability against a “person.” Hearing and Markup on H. R. 1417 before the House Committee on Foreign Affairs and Its Subcommittee on Human Rights and International Organizations, 100th Cong., 2d Sess., 82 (1988). During the markup session of the House Foreign Affairs Committee, one of the bill’s sponsors proposed an amendment “to make it clear we are applying it to individuals and not to corporations.” Id., at 81, 87. Counsel explained that it was a “fairly simple” matter “of changing the word ‘person’ to ‘individuals’ in several places in the bill.” Id., at 87–88. The amendment was unanimously adopted, and the version of the bill reported out of Committee reflected the change. Id., at 88; H. R. Rep. No. 693, pt. 1, p. 1 (1988). A materially identical version of the bill was enacted as the TVPA by the 102d Congress.
While joining the main opinion, Justice Breyer also concurred separately, basically to say "I don't think the dictionary's that clear; really, I needed the legislative history."

Bottom line: Yes, this sucks, though Congress could, theoretically, fix it. Don't count on it.

Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags


More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site