Last fall, I blogged about a decision by the Second Circuit Court of Appeals, in New York, ruling that corporations could not be sued for international human rights abuses under the federal Alien Tort Statute (ATS). This sent shockwaves through the human rights legal community, but its impact is far from determined, especially as other federal appeals courts begin to decide whether to follow or reject Kiobel.
Yesterday, I watched a hearing at the D.C. Circuit Court of Appeals in Doe v. Exxon Mobil, a human rights case involving abuses in Indonesia. Corporate liability is an issue in the appeal, but the judges made it clear that they were not about to follow the Second Circuit’s ruling without examining whether it was correct–and they asked a lot of tough questions of both sides. One judge indicated that he thought it made sense that the issue of corporate liability under the ATS should be a question for US domestic law (in which corporations are universally held liable on the same basis as human beings)–and the judges made it clear that they had read the amicus briefs detailing the ways in which the Kiobel analysis was flawed (for example, in supposing that German corporations who partnered with the Nazis were not subjected to punishment after WWII).
Indeed, we still don’t know what’s happening with the Kiobel decision itself. After the ruling, the plaintiffs filed a petition for rehearing, which asked the panel to reconsider its decision and also asks all of the judges on the court (the “en banc” court) to review what the three-judge panel had done. In late December, the court issued a notice saying that the petition for rehearing had been denied, which would ordinarily signal the end of the process. But the next day, the clerk issued another notice saying that the first notice had been issued in error.
It’s hard to know what to make of this, but that won’t stop me from hazarding a wild guess: What happens when a petition like this is filed is that the three-judge panel first gets to decide whether they want to reconsider their decision. If they don’t, then the rest of the judges can decide if the en banc court should rehear the case. The petition doesn’t get granted or denied until the end of this process. What I suspect happened here is that the court erroneously issued an order denying the petition after the three-judge panel said they were not reconsidering their decision, but before the court had decided whether to hear the case en banc. If that’s correct, the judges are probably in the process of voting whether to rehear the case en banc. Update (Feb 5, 2011): I guessed wrong. What was actually likely happening was that they had already voted to deny en banc rehearing, but the clerk wasn’t supposed to issue the order then because the judges needed time to prepare their opinions.
Meanwhile, the issue continues to come up in other cases. In October, I blogged about the Firestone case, in which the trial court agreed with Kiobel and dismissed the claims. That case is now on appeal to the Seventh Circuit Court of Appeals, which will be the next court to take up the issue. The next year may determine whether Kiobel was an outlier or a seminal case–and conflicts between the federal appeals courts may bring us closer to having the issue decided by the Supreme Court.
