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As expected, Bowoto v. Chevron petition is denied after Mohamad decision

As I noted last week, the U.S. Supreme Court ruled in Mohamad v. Palestinian Authority that only human beings - not corporations or organizations - could be sued under the Torture Victim Protection Act (TVPA). Yesterday, the Supreme Court denied our petition for certiorari in Bowoto v. Chevron Corp., which means an end to that lawsuit.

The decision on the Bowoto petition was expected, because the only issue in the petition was whether corporations could be sued under the TVPA. The Ninth Circuit Court of Appeals had ruled that the Bowoto plaintiffs could not sue Chevron under the TVPA because it is a corporation, and ERI asked the Supreme Court to overturn this decision.

Bowoto arose out of a 1998 incident in which, after environmental protestors occupied an offshore Chevron oil platform, Chevron called in Nigerian military and police forces to violently attack and evict the demonstrators, killing two people and injuring many others. Unfortunately, after a jury found in Chevron's favor in a 2008 trial, this petition to the Supreme Court was the plaintiffs' last chance for a new trial.

What are the other implications of the Mohamad decision? The case considered only the question of whether the term "individual" in the TVPA could include corporations and other entities. As my colleague Jonathan noted in his recent radio interview, the decision is outrageous because it suggests that the Supreme Court believes that corporations can be individuals under circumstances that benefit the corporation, but not when it would lead to additional liabilities. In a previous case, the court had ruled that corporations were "individuals" when it allowed them to challenge a federal statute, because it would be "absurd" to limit such challenges to human beings; in Mohamad, the court found nothing "absurd" about limiting responsibility for egregious human rights violations to human beings.

Nonetheless, because Mohamad only considered the meaning of the word "individual," it should have little impact on whether corporations can be sued under the Alien Tort Statute (ATS), which the Supreme Court is considering in the Kiobel case. Instead, the main result of Mohamad is a somewhat odd one. Right now, foreigners can sue corporations and organizations for torture under the ATS. The TVPA was enacted in part to give similar rights to U.S. citizens. But after Mohamad, U.S. citizens can't sue corporations for torture in the same way that foreigners can.

So the ultimate result in this case is less protection from torture, and fewer remedies available, for U.S. citizens. It's hard to see how Congress would have intended this interpretation when it passed the TVPA. Unfortunately, it now falls to a future Congress to correct the error.