Divided D.C. Circuit Splits with Second on Alien Tort Statute

This morning a divided panel of the U.S. Court of Appeals for the D.C. Circuit decided John Doe VIII v. Exxon Mobil Corp.. Of note, the court expressly disagreed with a recent decision of the U.S. Court of Appeals for the Second Circuit on the application of the Alien Tort Statute to corporate conduct. Judge Rogers’ 100-plus-page decision for the panel, joined by Judge Tatel, begins:

Pursuant to a contract with the Indonesian government, Exxon Mobil Corporation, a United States corporation, and several of its wholly owned subsidiaries (hereinafter “Exxon”) operated a large natural gas extraction and processing facility in the Aceh province of Indonesia in 2000–2001. Plaintiffs-appellants are fifteen Indonesian villagers from the Aceh territory. Eleven villagers filed a complaint in 2001 alleging that Exxon’s security forces committed murder, torture, sexual assault, battery, and false imprisonment in violation of the Alien Tort Statute (“ATS”) and the Torture Victim Protection Act (“TVPA”), and various common law torts. (The Doe I complaint.) Four other Aceh villagers alleged in 2007 that Exxon committed various common law torts. (The Doe VIII complaint.) All plaintiffs-appellants allege that Exxon took actions both in the United States and at its facility in the Aceh province that resulted in their injuries. The district court dismissed the statutory claims, see Doe I v. Exxon Mobil Corp., 393 F. Supp. 2d 20 (D.D.C. 2005), and discovery proceeded on the tort claims. Those claims, however, were subsequently dismissed for lack of prudential standing. See Doe VIII v. Exxon Mobil Corp., 658 F. Supp. 2d 131 (D.D.C. 2009). Plaintiffs appellants challenge the dismissals of their complaints and Exxon filed a cross-appeal, inter alia raising for the first time that as a corporation it was immune from liability under the ATS.

For the reasons that follow, we conclude that aiding and abetting liability is well established under the ATS. We further conclude under our precedent that this court should address Exxon’s contention on appeal of corporate immunity and, contrary to its view and that of the Second Circuit, we join the Eleventh Circuit in holding that neither the text, history, nor purpose of the ATS supports corporate immunity for torts based on heinous conduct allegedly committed by its agents in violation of the law of nations. We affirm the dismissal of the TVPA claims in view of recent precedent of this court. We conclude, however, that Exxon’s objections to justiciability are unpersuasive and that the district court erred in ruling that appellants lack prudential standing to bring their non-federal tort claims and in the choice of law determination. Finally, we conclude that Exxon’s challenge to the diversity of parties in the Doe VIII complaint is to be resolved initially by the district court. Therefore, we affirm the dismissal of plaintiffs appellants’ TVPA claims, reverse the dismissal of the ATS claims at issue in this appeal, along with plaintiffs-appellants’ non-federal tort claims, and remand the cases to the district court. (emphasis added)

Judge Kavanaugh dissented. His comparatively short, 39-page dissent argues that the lawsuit should have been dismissed and that “permitting these ATS claims to proceed jumps the rails of proper judicial restraint.”

UPDATE: BLT covers the decision here.

UPDATE: How Appealing rounds up more news coverage here.