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No. 09-15641 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH

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					                        _________________________________________


                                  No. 09-15641
                       __________________________________________


           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE NINTH CIRCUIT
                       __________________________________________


              LARRY BOWOTO, et al., Plaintiffs-Appellants,
                                          vs.
              CHEVRON CORP., et al., Defendants-Appellees.
                       __________________________________________


             On Appeal from the United States District Court
            Northern District of California, No. CV 99-02506 SI
                       The Honorable Susan Illston
                       __________________________________________


        APPELLANTS’ PETITION FOR PANEL REHEARING
                 OR REHEARING EN BANC
                       __________________________________________



Theresa Traber                               Marco Simons
Bert Voorhees                                Richard Herz
TRABER & VOORHEES                            Jonathan Kaufman
128 North Fair Oaks Avenue                   EARTHRIGHTS INTERNATIONAL
Pasadena, CA 91103                           1612 K Street NW, Suite 401
Tel: 626-585-9611                            Washington, DC 20006
                                             Tel: 202-466-5188
Barbara Enloe Hadsell
Dan Stormer                                  Cindy A. Cohn
HADSELL STORMER KEENY                        ELECTRONIC FRONTIER
RICHARDSON & RENICK LLP                      FOUNDATION
128 North Fair Oaks Avenue                   454 Shotwell St.
Pasadena, CA 91103                           San Francisco, California 94110
Tel: 626-585-9600                            Tel: 415-436-9333

                     Attorneys for Plaintiffs-Appellants

          (counsel for Plaintiffs-Appellants continued on next page)
Paul Hoffman                              Judith Brown Chomsky
SCHONBRUN DESIMONE SEPLOW                 LAW OFFICES OF JUDITH BROWN
HARRIS HOFFMAN & HARRISON                 CHOMSKY
LLP                                       P.O. Box 29726
723 Ocean Front Walk                      Elkins Park, PA 19027
Venice, CA 90291                          Tel: 215-782-8367
Tel: 310-396-0731
                                          Richard R. Wiebe
Jose Luis Fuentes                         LAW OFFICE OF RICHARD R.
SIEGEL & YEE                              WIEBE
499 14th Street, Suite 220                One California Street, Suite 900
Oakland, CA 94612                         San Francisco, CA 94111
Tel: 510-839-1200                         Tel: 415-433-3200

Michael S. Sorgen                         Anthony DiCaprio
LAW OFFICES OF MICHAEL S.                 Attorney & Counselor at Law
SORGEN                                    64 Purchase Street
240 Stockton Street, 9th Floor            Rye, NY 10580
San Francisco, California 94108           Tel: 914-439-5166
Tel: 415-956-1360

                        Attorneys for Plaintiffs-Appellants
                                         TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT PURSUANT TO FED. R. APP. PROC. 35(b)(1) . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.       The panel erroneously departed from Supreme Court guidance and
         created a circuit split in ruling that corporations are not liable for torture
         and extrajudicial killing under the Torture Victim Protection Act . . . . . . . 4

         A.       Because immunizing corporations for torture and killing is
                  inconsistent with the statutory purpose, the panel opinion
                  conflicts with Supreme Court precedent . . . . . . . . . . . . . . . . . . . . . . 4

         B.       The panel opinion offers insufficient reason for creating a circuit
                  split . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

                  1.       “Individual” should not be presumed to exclude corporations. 7

                  2.       Application of the TVPA to corporations does not require
                           inconsistent usage of terms . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

                  3.       Legislative history does not support the panel’s restrictive
                           interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

II.      The panel erroneously created a circuit split, and ignored controlling
         Supreme Court precedent, in ruling that the dismissal of extrajudicial killing
         claims was harmless where claims with a higher burden of proof were
         rejected by the jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

III.     If the panel correctly determined that the dismissal of extrajudicial killing
         claims was harmless, its analysis of the TVPA is dicta and should be
         excised; the panel should not have created a circuit split unnecessarily . . 17

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18


                                                              i
                                   TABLE OF AUTHORITIES

                                               Federal Cases

Anderson v. United States,
     417 U.S. 211 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Atlantic Cleaners & Dyers, Inc. v. United States,
      286 U.S. 427 (1932). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Bowoto v. Chevron Corp.,
     __ F.3d __, No. 09-15641 (9th Cir. Sep. 10, 2010) (slip opinion) . . . passim

Cavataio v. City of Bella Villa,
     570 F.3d 1015 (8th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Citizens United v. Federal Election Commission,
      130 S. Ct. 876 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Clinton v. City of New York,
      524 U.S. 417 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4

Duplex Printing Press Co. v. Deering,
     254 U.S. 443 (1921) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Edmonds v. Compagnie Generale Transatlantique,
    443 U.S. 256 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12

Eldred v. Ashcroft,
      537 U.S. 186 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

First National Bank v. Bellotti,
       435 U.S. 765 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Fite v. Digital Equipment Corp.,
       232 F.3d 3 (1st Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 14-15

In re Goodman,
       991 F.2d 613 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11


                                                        ii
Grazier v. City of Philadelphia,
      328 F.3d 120 (3d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Gross v. Weingart,
      217 F.3d 208 (4th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Hilao v. Estate of Marcos,
     103 F.3d 767 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

McDonnell Douglas Corp. v. Green,
    411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13-14, 15

Sinaltrainal v. Coca-Cola Co.,
       578 F.3d 1252 (11th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6

Sinaltrainal v. Coca-Cola Co.,
       256 F. Supp. 2d 1345 (S.D. Fla. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Snyder v. AG Trucking, Inc.,
     57 F.3d 484 (6th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Tel-Oren v. Libyan Arab Republic,
      726 F.2d 774 (D.C. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tennison v. Circus Circus Enterprises, Inc.,
      244 F.3d 684 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 15

United States v. A&P Trucking Co.,
      358 U.S. 121 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

United States v. Middleton,
      231 F.2d 1207 (9th Cir 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Uphoff Figueroa v. Alejandro,
     597 F.3d 423 (1st Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14




                                                      iii
                                                  Federal statutes

1 U.S.C. § 1 (Dictionary Act) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

8 U.S.C.
      § 1101(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
      § 1324 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

18 U.S.C.
      § 229A         ...................................................... 9
      § 229F         ...................................................... 9
      § 1201         . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 n.1
      § 1203         . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 n.1
      § 1584         . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 n.1
      § 1589         . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 n.1
      § 2340         ...................................................... 8

28 U.S.C.
      § 1350 (Alien Tort Statute) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
      § 1350 note (Torture Victim Protection Act) . . . . . . . . . . . . . . . . . . . . 1, 7-8

33 U.S.C. § 1319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

42 U.S.C. § 7413 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

                                          Federal legislative history

H.R. Rep. No. 100-693 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

H.R. Rep. No. 102-367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 10

S. Rep. No. 102-249 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 10




                                                             iv
        STATEMENT PURSUANT TO FED. R. APP. PROC. 35(b)(1)

      En banc or panel rehearing is warranted here because the panel’s decision

on at least two issues both conflicts with controlling Supreme Court precedent and

creates circuit splits with other Courts of Appeal on issues of exceptional

importance.

      The panel’s conclusion that the term “individual” in the Torture Victim

Protection Act (TVPA), 28 U.S.C. § 1350 note, does not apply to corporations is

inconsistent with Clinton v. City of New York, 524 U.S. 417, 428-29 (1998);

furthermore, the panel’s use of statements of one member of Congress in a

committee markup as legislative history is contrary to Edmonds v. Compagnie

Generale Transatlantique, 443 U.S. 256, 273 n.32 (1979). The ruling directly

conflicts with Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1264 n.13 (11th Cir.

2009), which holds that “individual” in the TVPA includes corporations.

Moreover, the determination of whether an entire class of defendants, including

the world’s most significant economic actors, are immune from liability for torture

and extrajudicial killing is by itself an issue of exceptional importance.

      Rehearing is also warranted because the panel erroneously concluded that

dismissal of a claim for extrajudicial killing under the Alien Tort Statute (ATS),

28 U.S.C. § 1350, was harmless where the jury rejected a claim for wrongful

death, even though the dismissed claim required only proof by preponderance of


                                          1
the evidence, while the rejected claim required proof beyond a reasonable doubt.

This conflicts with McDonnell Douglas Corp. v. Green, 411 U.S. 792, 799 (1973),

because the two claims are not identical. It also conflicts with the First Circuit’s

decision in Fite v. Digital Equipment Corp., 232 F.3d 3, 6 (1st Cir. 2000), which

holds that dismissal of a claim is not harmless if there is “a pertinent difference in

standards.” This issue is likewise exceptionally important because the standards

governing determination of when a court’s erroneous pretrial dismissal of a claim

can be considered harmless directly implicates litigants’ right to a jury trial.

      Rehearing is further warranted because, if the panel was correct in

determining that the dismissal of the ATS extrajudicial killing claim was harmless,

the same conclusion would apply to the parallel claim under the TVPA. In this

event, the panel should not have reached the substance of the TVPA claim at all.

                             STATEMENT OF THE CASE

      Plaintiffs-Appellants (“Plaintiffs”) recount only the facts and history

relevant to this petition.

      Plaintiffs Larry Bowoto, Bassey Jeje, and the families of decedents Arolika

Irowarinun and Bola Oyinbo brought suit against Chevron Corporation and its

subsidiaries (“Chevron”) for injuries inflicted by Nigerian government security

forces (GSF), paid by Chevron, in response to a protest at a Chevron facility. On

May 25, 1998, members of Nigerian communities harmed by Chevron’s


                                           2
operations, including Plaintiffs, staged a protest at Chevron’s Parabe platform and

an adjacent barge. Following negotiations in which the communities agreed on a

timetable to vacate the platform, Chevron directed the GSF, notorious for their

record of human rights abuses and excessive force, to assault the platform on May

28, 1998. Arolika Irowarinun was shot in the side and killed by the GSF. Larry

Bowoto and Bassey Jeje were likewise shot at different points during the GSF

attack. After the shootings, Bola Oyinbo was detained for weeks and tortured.

      Plaintiffs brought suit for violations of international law under the ATS and

TVPA, including extrajudicial killing, as well as common-law claims such as

battery and wrongful death. The district court found that any ATS claims for

Irowarinun’s death were precluded by the Death on the High Seas Act (DOHSA),

and that no TVPA claims could be brought against corporations. The district court

determined that common-law claims for Irowarinun’s injuries must proceed under

Nigerian law, in which civil battery carries a beyond-a-reasonable-doubt standard

of proof, and further required that plaintiffs prove, as an element of battery, that

the GSF used unreasonable force. A jury found against plaintiffs on all claims and

judgment was entered.

      Plaintiffs appealed. On September 10, 2010, a panel of this Court affirmed

the judgment. The panel affirmed the ruling that corporations cannot be sued

under the TVPA. The panel did not reach the question of whether DOHSA


                                           3
precluded the ATS extrajudicial killing claim, finding that any error in dismissing

that claim was harmless in light of the claims that the jury rejected.

                                   ARGUMENT

I.    The panel erroneously departed from Supreme Court guidance and
      created a circuit split in ruling that corporations are not liable for
      torture and extrajudicial killing under the Torture Victim Protection
      Act.

      The panel’s ruling that the TVPA does not apply to corporations, see slip

op. at 13907, contravenes the Supreme Court’s guidance on statutory construction

and interpretation of legislative history, and the panel consciously created a circuit

split with the only other Court of Appeals to decide this question.

      A.     Because immunizing corporations for torture and killing is
             inconsistent with the statutory purpose, the panel opinion
             conflicts with Supreme Court precedent.

      In Clinton, the Supreme Court held that the term “individual” in the Line

Item Veto Act included corporations, because “Congress undoubtedly intended the

word ‘individual’ to be construed as synonymous with the word ‘person’” in that

statute. 524 U.S. at 428. Examining the purpose behind the provision—to allow

“a prompt and authoritative judicial determination of the constitutionality of the

Act,” id. at 428-29—the Court concluded that Congress would not have intended

to exclude corporations from the definition of “individual.” Id. at 429.

      This approach of examining the purpose of the statutory scheme is



                                          4
consistent with United States v. A&P Trucking Co., 358 U.S. 121 (1958). There,

the Supreme Court considered whether the term “whoever” applied to

partnerships, despite their general lack of separate legal personality. Because the

statute at issue was intended to “make[] regulations . . . for the transportation of

dangerous articles binding on all common carriers,” the Court noted that “the

conclusion is not lightly to be reached that Congress intended that some carriers

should not be subject to the full gamut of sanctions provided . . . merely because

of the form under which they were organized to do business.” Id. at 124. The

Court concluded:

      The business entity cannot be left free to break the law merely
      because its owners . . . do not personally participate in the infraction.
      The treasury of the business may not with impunity obtain the fruits
      of violations which are committed knowingly by agents of the entity
      in the scope of their employment.

Id. at 126. This conclusion is consistent with a long line of Supreme Court cases,

most recently Citizens United v. Federal Election Commission, 130 S. Ct. 876

(2010), holding that corporations have similar rights as natural persons. See, e.g.,

First Nat’l Bank v. Bellotti, 435 U.S. 765, 780 n.15 (1978).

      The Clinton approach dictates that the term “individuals” in the TVPA

likewise encompasses corporations. Congress’ purpose in passing the TVPA was

to fulfill its obligation “to adopt measures to ensure that torturers are held legally

accountable for their acts” by providing “means of civil redress to victims of


                                           5
torture.” H.R. Rep. No. 102-367 at 3. As in Clinton, this purpose is antithetical to

excluding corporations from liability; Congress would not have intended to create

a gap in this redress scheme for abuses perpetrated by corporations—to allow “the

treasury of the business [to] with impunity obtain the fruits” of torture by its

agents. A&P Trucking, 358 U.S. at 126.

      B.     The panel opinion offers insufficient reason for creating a circuit
             split.

      In several cases, including Sinaltrainal, the Eleventh Circuit has held that

the TVPA applies to corporations. 578 F.3d at 1264 n.13. While the discussion in

Sinaltrainal was brief, it affirmed the detailed analysis of the lower court, see

Sinaltrainal v. Coca-Cola Co., 256 F. Supp. 2d 1345, 1358–59 (S.D. Fla. 2003),

and its general statement that the TVPA was designed to be “broader than the ATS

in that the TVPA allows citizens, as well as aliens, to seek a remedy,” 578 F.3d at

1263–64, is consistent with the legislative history. See S. Rep. No. 102-249 at 5

(TVPA should “enhance the remedy” available under the ATS).

      The panel here rejected Sinaltrainal for three reasons. First, citing the

Dictionary Act, 1 U.S.C. § 1, the panel concluded that it “must presume” that

“corporations” and “individuals” “have different meanings.” Slip op. at 13905.

Second, the panel reasoned that corporate liability would require that the word

“individual” has “different meanings” for its usage within “the same statute.” Id.



                                          6
at 13906. Third, the panel found that the legislative history supports restricting

liability to natural persons. Id. at 13906-07. None of these reasons withstands

scrutiny.

             1.    “Individual” should not be presumed to exclude
                   corporations.

      The Dictionary Act does not define “individual,” but the panel found that it

“speaks of ‘corporations’ and ‘individuals’ as distinct terms,” because they are

separately listed in the definition of “person.” Slip op. at 13905. But other

definitions in the Dictionary Act list synonyms or subsets of categories: “insane

person” includes “every idiot, lunatic, [and] insane person,” which do not have

distinct meanings, and “writing” includes “printing” as well as “multigraphing”

and “mimeographing,” which are types of printing. 1 U.S.C. § 1. Thus the fact

that “individual” is listed alongside “corporations” in the definition of “person”

cannot be taken to mean that “individual” excludes “corporations.”

      Citing United States v. Middleton, 231 F.2d 1207, 1211 (9th Cir 2000), the

panel here recognized that the interchangeable use of “individual” and “person”

supports the interpretation that “individual” includes corporations. Slip op. at

13905. But the TVPA does use the terms “individual” and “person”

interchangeably. See TVPA § 2(a)(2) (allowing actions to be brought by “the

individual’s legal representative” or by “any person who” is a wrongful death



                                          7
claimant). The same is true for the committee reports on the TVPA; in addition to

using “individual,” the House report refers to the victim as “a person,” H.R. Rep.

No. 102-367 at 4, while the Senate report states that “persons” who commit torture

can be sued. S. Rep. No. 102-249 at 8.

             2.    Application of the TVPA to corporations does not require
                   inconsistent usage of terms.

      It is not inconsistent to suggest that “individual” includes corporations

simply because that term refers both to torturer and victim alike. Of course not all

“individuals” are capable of being tortured. But this does not require that

Congress was using the term inconsistently, because Congress often enacts laws

using terms whose full meaning is not applicable in every instance in which the

word is used. For example, the U.S. criminal torture statute uses “person” in

precisely the same way, referring to both the torturer and victim. See 18 U.S.C. §

2340(1) (emphasis added). By the panel’s logic, this statute uses the word

“person” inconsistently because it implies that corporations, which are generally

included within the term “persons,” can be tortured.1

      Examples abound of Congress enacting statutes describing victims of

violence in terms that include corporations. The chemical weapons statute, for

      1
        By the same logic, one would think that Congress believes that
corporations can be kidnaped, see 18 U.S.C. § 1201(a), taken hostage, see id. §
1203(a), sold into slavery, see id. § 1584(a), or made to commit forced labor, see
id. § 1589(a), in addition to being tortured.

                                         8
example, prescribes penalties for “[a]ny person” who causes “the death of another

person” by chemical weapons, 18 U.S.C. § 229A(a)(2), and defines “person” to

include a “corporation.” Id. § 229F(5); see also 8 U.S.C. § 1324(a)(1) (prescribing

punishment for “any person” who commits immigration crimes that “result[] in the

death of any person”) and id. § 1101(b)(3) (defining “person” in the immigration

code to include “an organization”); 33 U.S.C. § 1319(c)(3) (providing penalties

for “a person which is an organization” who knowingly “places another person in

imminent danger of death or serious bodily injury” when committing acts of water

pollution, and defining “organization” to include “a corporation”); 42 U.S.C. §

7413(c)(5) (similar with respect to air pollution).

      Plaintiffs submit that the more sensible view is that, while Congress may

use words consistently, not every member of the set covered by a word is relevant

to every use of the word. A word such as “individual” or “person” may include

artificial entities, even though some uses of the word only apply to human beings.

As the Supreme Court has recognized, “[m]ost words have different shades of

meaning and consequently may be variously construed, not only when they occur

in different statutes, but when used more than once in the same statute or even in

the same section.” Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S.

427, 433 (1932).




                                          9
             3.    Legislative history does not support the panel’s restrictive
                   interpretation.

      The panel’s use of legislative history in this case contravenes Supreme

Court precedent and ignores the only part of the legislative history that actually

discusses the relevant word choice.

      “[T]he authoritative source for finding the Legislature’s intent lies in the

Committee Reports on the bill.” Eldred v. Ashcroft, 537 U.S. 186, 209 n.16

(2003) (internal punctuation omitted). The TVPA was passed in 1992 by the

102nd Congress, and accompanied by committee reports in both the House and

Senate. A motivating factor was Judge Bork’s opinion in Tel-Oren v. Libyan Arab

Republic, 726 F.2d 774 (D.C. Cir. 1984), that torture claims could not be brought

under the ATS. See H.R. Rep. No. 102-367 at 4; S. Rep. No. 102-249 at 4.

Congress was aware that both Libya and several organizational defendants had

been sued in Tel-Oren, but only expressed concern about suing states: both reports

explain that “individual,” rather than “person,” was chosen in order “to make

crystal clear that foreign states” cannot be sued. S. Rep. No. 102-249 at 7; see

also H.R. Rep. No. 102-367 at 4. This explanation is perfectly consistent with the

purpose of the TVPA and consistent with an interpretation that includes

corporations.

      The panel ignored this legislative history entirely. Instead, the panel



                                         10
concluded that it could only find that the word “individual” included corporations

if there were some direct evidence in the legislative history that it was meant to do

so. Slip op. at 13906. The panel cited In re Goodman, 991 F.2d 613, 619 (9th Cir.

1993), which it characterized as excluding corporations from the term “individual”

“because there was ‘no legislative history showing that the section was meant to

apply to’ corporations.” Slip op. at 13906-07. If this were the rule of Goodman, it

does not survive the subsequent ruling by the Supreme Court in Clinton, which, as

noted above, found intent to include corporations from the overall purpose of the

statute, rather than from a specific indication in the legislative history. In

requiring such legislative evidence, the panel erred.

      The panel further erred in relying on materials that the Supreme Court has

cautioned do not represent legislative history. Instead of relying on the actual

committee reports, the panel instead cited statements from one member of

Congress during a markup of a previous version of the TVPA two Congresses

prior to its enactment. See slip op. at 13906 (quoting The Torture Victim

Protection Act: Hearing and Markup before the H. Comm. on Foreign Affairs on

H.R. 1417, 100th Cong. 82, 85 (1988)). While it might reflect that single

member’s understanding with respect to that version of the bill, this markup is not

legislative history that can be considered in interpreting the final statute. There is

no evidence “that the Senators and Representatives who voted for the [bill] when


                                          11
[it] reached the floor knew of” this exchange, and the “subsequent legislative

history does not so much as hint” at this conversation. Edmonds, 443 U.S. at 273

n.32. While committee reports represent an “exposition” of legislative intent,

statements by individual members do not. Duplex Printing Press Co. v. Deering,

254 U.S. 443, 474 (1921). The committee report from the same markup does not

indicate any intent to exclude corporations; it uses “individual” and “person”

interchangeably. See H.R. Rep. No. 100-693 at 3. There is no indication that the

100th Congress, beyond the members present at the markup, had any knowledge

of why the word “individual” was chosen, nor that it had any understanding that

the term was intended to mean something other than “person”—let alone that the

members of the 102nd Congress had any inkling of what had transpired in a

markup four years before.

II.   The panel erroneously created a circuit split, and ignored controlling
      Supreme Court precedent, in ruling that the dismissal of extrajudicial
      killing claims was harmless where claims with a higher burden of proof
      were rejected by the jury.

      The panel declined to decide whether the district court erred in dismissing

Plaintiffs’ ATS claims for the extrajudicial killing of Arolika Irowarinun. Citing

Tennison v. Circus Circus Enterprises, Inc., 244 F.3d 684, 691 (9th Cir. 2001), the

panel concluded that, “even assuming the district court erred in dismissing the

summary execution claim, there was no prejudice.” Slip op. at 13900. The



                                        12
panel’s finding of a lack of prejudice, however, was premised on the speculation

that the jury would have rejected a claim with a lower standard of proof because

the jury had rejected a similar claim with a higher standard of proof. This ruling

conflicts with Supreme Court and other circuit caselaw and is not supported by

Tennison or other Ninth Circuit precedent.

      Plaintiffs would have had to prove extrajudicial killing under the ATS by a

preponderance of the evidence. Slip op. at 13901. The panel identified one

similar claim that was presented to the jury: Plaintiffs’ “wrongful death claim

under Nigerian law,” which also “require[d] a showing that the decedent died due

to the wrongful conduct of the defendant.” Id. at 13900. The panel then

acknowledged that the wrongful death claim, because it was premised on a

Nigerian battery claim, required proof “beyond a reasonable doubt.” Id. at 13901.

In fact, the district court also required, as an element of battery, that Plaintiffs

prove beyond a reasonable doubt that the GSF used unreasonable force—a ruling

the panel affirmed over Plaintiffs’ objection. See id. at 13907-08. Nonetheless,

the panel held that this difference in standards of proof was insignificant: “There is

no reason to believe the jury would have found a summary execution claim

meritorious under any standard.” Id. at 13901.

      This was error. In McDonnell Douglas, the Supreme Court held that the

dismissal of a civil rights claim was not harmless, despite the jury’s rejection of


                                           13
another civil rights claim, because it was “not clear” that the dismissed claim

“involved the identical issues raised by” the rejected claim. 411 U.S. at 799. This

test—that the dismissed claim must be substantively identical to the rejected

claim—has generally been applied by the Courts of Appeals. See, e.g., Gross v.

Weingart, 217 F.3d 208, 219 (4th Cir. 2000) (finding dismissal of a statutory claim

premised on fraud to be harmless where the jury had rejected common-law claims

“for fraud and constructive fraud,” because the evidence for the claims was

“identical” and it would be “logically inconsistent” for the jury to find fraud under

the statutory scheme when it did not find common-law fraud); Uphoff Figueroa v.

Alejandro, 597 F.3d 423, 433 (1st Cir. 2010) (concluding that dismissal of a state

retaliation claim “was harmless” because “[a]n identical retaliation claim went to

the jury under federal law, and the jury rejected” it). There is no question here that

the dismissed extrajudicial killing claim was not “identical” to the rejected

wrongful death claim, as the panel itself acknowledged.

      Moreover, the difference in standards of proof puts the panel’s ruling in

direct conflict with another circuit. In Fite, the First Circuit held that the dismissal

of state claims would be harmless where federal claims were rejected, “[u]nless

there was a pertinent difference in standards, or some other advantage to

proceeding under the state scheme.” 232 F.3d at 6 (emphasis added). The

difference between proving unreasonable force beyond a reasonable doubt and


                                          14
proving extrajudicial killing by a preponderance of the evidence is obviously a

“pertinent difference in standards,” id., and the panel here has created a clear

conflict with the First Circuit.

      Nor is the panel’s ruling supported by this Court’s decision in Tennison or

the caselaw of other circuits. Indeed, in Tennison’s very brief discussion, the only

case relied upon is Fite. See 244 F.3d at 691. Tennison holds only that there is no

prejudice in dismissing two claims where they depend on “the same facts and legal

inquiries.” Id. But the dismissed extrajudicial killing claim here depended on a

different legal inquiry than the wrongful death claim, due to the difference in

standards of proof. Other cases that depart from the McDonnell Douglas

“identical issues” test do so in ways not relevant here. See, e.g., Cavataio v. City

of Bella Villa, 570 F.3d 1015, 1024 (8th Cir. 2009) (finding dismissal of a

constitutional claim harmless where the dismissed claim carried a higher standard

of proof than a similar state law claim rejected by the jury); Grazier v. City of

Philadelphia, 328 F.3d 120, 124 (3d Cir. 2003) (finding “any error” in dismissing

a municipal liability claim to be “harmless” because such a claim was necessarily

predicated on the liability of city employees, which had been rejected by the jury);

Snyder v. AG Trucking, Inc., 57 F.3d 484, 491 (6th Cir. 1995) (finding that

dismissal of a claim for willfully violating the ADEA was harmless where the jury

had rejected the notion that the ADEA had been violated at all).


                                          15
      Here, by contrast, there is no difficulty in imagining a scenario where the

jurors were not convinced beyond a reasonable doubt that the GSF used

unreasonable force, leading them to reject the Nigerian battery and wrongful death

claims, but where they would have accepted that, more likely than not, the force

was unreasonable. The only reason offered by the panel for rejecting such a

scenario was that “[t]he jury rejected a total of 20 common law claims brought by

Plaintiffs under a variety of burdens of proof.” Slip op. at 13901. But, with the

exception of the single wrongful death claim that required proof beyond a

reasonable doubt, every other claim submitted to the jury involved injuries to other

plaintiffs, see ER:3244-51, who were injured at other times by different

individuals under different circumstances; these claims were not premised on

similar facts and legal inquiries. Unless the panel was supposing that the jury was

simply biased against the plaintiffs as a whole, the fact that the jury rejected (for

example) the claim that Bola Oyinbo was tortured after being detained by the GSF

should have no bearing whatsoever on the determination of whether the jury

would have rejected a claim for the extrajudicial killing of Arolika Irowarinun.

      The panel’s ruling is thus inconsistent with the caselaw of the Supreme

Court, this Circuit, and other circuits, and clearly conflicts with the First Circuit.

Because this ruling concerns an important question of the right to a jury

trial—essentially, the question of when an appellate court may determine that a


                                           16
trial on an erroneously dismissed claim is unnecessary, based on the results of a

previous trial—the panel’s ruling should be reviewed by the court en banc.

III.   If the panel correctly determined that the dismissal of extrajudicial
       killing claims was harmless, its analysis of the TVPA is dicta and should
       be excised; the panel should not have created a circuit split
       unnecessarily.

       Although Plaintiffs believe that the panel’s conclusion regarding the

harmlessness of excluding the extrajudicial killing claim was erroneous, if it was

in fact correct, then the TVPA analysis is dicta. Under these circumstances, the

panel should not have reached out to decide an unnecessary issue and created a

circuit split in the process.

       Assuming that the panel’s analysis of Tennison and harmless error is

correct, its analysis of the TVPA was wholly unnecessary. Before reaching the

TVPA discussion, the panel had already “conclude[d] that even assuming the

district court erred in dismissing the summary execution claim, there was no

prejudice.” Slip op. at 13900. But the panel failed to acknowledge that the ATS

summary execution claim was substantively identical to the TVPA extrajudicial

killing claim. Plaintiffs referred to both claims as “extrajudicial killing,” see

Appellants’ Reply Br. at 29; see also Hilao v. Estate of Marcos, 103 F.3d 767,

776-79 (9th Cir. 1996) (using “summary execution” and “extrajudicial killing”

interchangeably). If Plaintiffs suffered no prejudice from the dismissal of their



                                          17
ATS extrajudicial killing claim, Plaintiffs likewise suffered no prejudice from the

dismissal of their TVPA extrajudicial killing claim. Because the panel had already

decided that any error was harmless, any analysis of the TVPA claim would be

unnecessary dicta.

      Courts should not reach out to decide issues unnecessarily, especially

“important questions of statutory construction[,] when simpler, and more settled,

grounds are available for deciding the case at hand.” Anderson v. United States,

417 U.S. 211, 218 (1974). Especially in light of the fact that its decision created a

circuit split, the panel should not have reached out to decide this issue, and this

discussion should be excised from the opinion.

                                  CONCLUSION

      For the foregoing reasons, Plaintiffs request that panel rehearing or

rehearing en banc be granted.

DATED: September 24, 2010               Respectfully submitted,

                                        EARTHRIGHTS INTERNATIONAL

                                        By s/ Marco Simons
                                              Marco Simons
                                        Attorneys for Plaintiffs-Appellants




                                          18
            CERTIFICATE OF COMPLIANCE PURSUANT TO
                   CIRCUIT RULES 35-1 AND 40-1

Case No. 09-15641

      I certify that pursuant to Circuit Rule 35-4 or 40-1, the attached petition for
panel rehearing and rehearing en banc is proportionately spaced, has a typeface of
14 points or more and contains 4200 words (petitions and answers must not
exceed 4,200 words).

DATED: September 24, 2010              Respectfully submitted,

                                       EARTHRIGHTS INTERNATIONAL

                                       By s/ Marco Simons
                                             Marco Simons
                                       Attorneys for Plaintiffs-Appellants

				
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