Mohamad v. Rajoub

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 2010 Decided March 18, 2011

No. 09-7109

ASID MOHAMAD, INDIVIDUALLY AND FOR THE ESTATE OF
AZZAM RAHIM, ET AL.,
APPELLANTS

v.

JIBRIL RAJOUB, ET AL.,
APPELLEES

Consolidated with 09-7158

Appeals from the United States District Court
for the District of Columbia
(No. 1:08-cv-01800)

Robert J. Tolchin argued the cause and filed the briefs for
appellants.

Laura G. Ferguson argued the cause for appellees. With
her on the brief was Kevin G. Mosley. Richard A. Hibey and
Mark J. Rochon entered appearances.

Before: GINSBURG, TATEL and GARLAND, Circuit Judges.
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Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge: The sons and widow of Azzam
Rahim sued the Palestinian Authority and the Palestine
Liberation Organization for damages on behalf of Rahim’s
estate. The plaintiffs alleged the defendants tortured and
killed Rahim in violation of both the Torture Victim
Protection Act (TVPA), 28 U.S.C. § 1350, note § 2(a), and
federal common law. The district court granted the
defendants’ motion to dismiss, concluding only a natural
person is amenable to suit under the TVPA and the Rahims
had no cause of action under federal common law. We affirm
the judgment of the district court.

I. Background

Because the district court dismissed this case on the basis
of the complaint alone, we assume for the purpose of this
appeal that the allegations therein are in all respects true.
Meijer, Inc. v. Biovail Corp., 533 F.3d 857, 865–66 (D.C. Cir.
2008). According to the complaint, Azzam Rahim, a
Palestinian born and raised in the West Bank, became a
citizen of the United States after moving here in the 1970s.
The events in suit took place when Rahim visited the West
Bank in 1995. While he was sitting in a coffee shop, some
two to four men, who identified themselves as security police,
forced him into an unmarked car. They took Rahim to a
prison in Jericho, where he was tortured and eventually killed.
In 1996 the U.S. Department of State issued a report on
human rights practices in the West Bank since Israel had
transferred certain responsibilities over the area to the
Palestinian Authority. The report stated that Rahim had “died
in the custody of PA intelligence officers in Jericho.”
 3
The Rahims initially filed suit in the U.S. District Court
for the Southern District of New York. In 2007 that court
entered a default against the defendants, neither of which had
answered the complaint. * After the defendants moved to
vacate the entry of default and to dismiss the Rahims’
complaint for, among other reasons, lack of personal
jurisdiction in that district, the court granted the Rahims’
motion to transfer the case to the District Court for the
District of Columbia, where the defendants renewed their
motions to vacate the entry of default and to dismiss the
Rahims’ complaint.

Granting the defendants’ motions, the district court set
aside the entry of default and dismissed the case pursuant to
Federal Rule of Civil Procedure 12(b)(6), holding the
plaintiffs have no cause of action under either the TVPA or
federal common law. Mohamad v. Rajoub, 664 F. Supp. 2d
20, 22–24 (D.D.C. 2009). The Rahims now appeal.

II. Analysis

The plaintiffs present three issues on appeal: (1) whether
the district court abused its discretion in vacating the entry of
default, see Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir.
1980), and, if not, whether the Rahims have a cause of action
under (2) the TVPA or (3) federal common law. We review
the latter two issues de novo. See Rochon v. Gonzales, 438
F.3d 1211, 1216 (D.C. Cir. 2006).

A. Setting Aside the Default

First, we hold the district court did not abuse its
discretion in setting aside the default entered against the

*
No judgment was ever entered upon the default.
 4
defendants pursuant to Federal Rule of Civil Procedure 55(c),
which rule permits a district court to “set aside an entry of
default for good cause.” See also Jackson, 636 F.2d at 836
(“strong policies favor resolution of disputes on their merits”).
In exercising its discretion, the district court is supposed to
consider “whether (1) the default was willful, (2) a set-aside
would prejudice plaintiff, and (3) the alleged defense was
meritorious.” Keegel v. Key West & Caribbean Trading Co.,
627 F.2d 372, 373 (D.C. Cir. 1980). In this case, the district
court did not say why it granted the defendants’ motion to
vacate but, as it happens, we need not remand the case
because the Rahims’ only argument against setting aside the
default is that the defendants presented no “meritorious
defense” to this action.

As the defendants note, “allegations are meritorious if
they contain even a hint of a suggestion which, proven at trial,
would constitute a complete defense.” Id. at 374 (internal
quotation marks and citations omitted). The defendants far
surpassed this standard, as will be seen in what follows.

B. The Torture Victim Protection Act

The TVPA was enacted in 1992 in order to create “a civil
action for recovery of damages from an individual who
engages in torture or extrajudicial killing.” Pub. L. No. 102-
256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350, note).
The relevant provision of the TVPA states:

(a) Liability.--An individual who, under actual or
apparent authority, or color of law, of any foreign
nation--

(1) subjects an individual to torture shall, in a civil
action, be liable for damages to that individual; or
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(2) subjects an individual to extrajudicial killing
shall, in a civil action, be liable for damages to the
individual's legal representative, or to any person
who may be a claimant in an action for wrongful
death.

28 U.S.C. § 1350, note § 2(a). The defendants argue the
district court properly dismissed the Rahims’ claim under the
TVPA because this provision does not create a cause of action
against an organization, as opposed to a natural person.

We begin our inquiry, as always, with the text of the
statute. Bismullah v. Gates, 551 F.3d 1068, 1072 (D.C. Cir.
2009). The Rahims claim the Palestinian Authority and the
PLO are amenable to suit under the TVPA because the word
“individual,” in referring to the perpetrator of torture or of
extrajudicial killing, includes organizations. The Rahims’
authority for this proposition is limited to the observation that
the term “individual” is “consistently viewed in the law as
including corporations.” Sinaltrainal v. Coca-Cola Co., 256
F. Supp. 2d 1345, 1359 (S.D. Fla. 2003) (holding corporation
may be sued under TVPA), aff’d in relevant part, 578 F.3d
1252, 1264 n.13 (11th Cir. 2009); see also Romero v.
Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008) (TVPA
“allows suits against corporate defendants”); United States v.
Middleton, 231 F.3d 1207, 1210 (9th Cir. 2000) (statute
making it a crime to access certain computers and thereby
cause damage to “one or more individuals” applies to injured
corporations). The defendants, for their part, argue
“individual” should be understood in its ordinary sense,
meaning only a natural person. See, e.g., In re North (Gadd
Fee Application), 12 F.3d 252, 254–55 (D.C. Cir. 1994)
(“individual” as used in the fee provision of the Ethics in
Government Act describes only natural persons).
 6
We agree with the defendants. Because the Congress did
not define the term “individual” in the TVPA, we give the
word its ordinary meaning, Asgrow Seed Co. v. Winterboer,
513 U.S. 179, 187 (1995), which typically encompasses only
natural persons and not corporations or other organizations,
North, 12 F.3d at 254 (“In common usage, ‘individual’
describes a natural person”) (citation omitted); cf. Clinton v.
City of New York, 524 U.S. 417, 428 n.13 (1998) (“‘person’
often has a broader meaning in the law” than does
“individual”). Notably, the Dictionary Act, which provides
guidance in “determining the meaning of any Act of
Congress,” strongly implies the word individual does not
comprise organizations because it defines “person” to include
“corporations, companies, associations, firms, partnerships,
societies,... as well as individuals.” 1 U.S.C. § 1; see also
Bowoto v. Chevron Corp., 621 F.3d 1116, 1126–27 (9th Cir.
2010) (through the Dictionary Act, the “Congress has directed
courts to presume the word ‘individual’ in a statute refers to
natural persons and not corporations”).

The Rahims nonetheless argue the term “individual” is at
least ambiguous, wherefore the court should look to the
purpose of the TVPA, which supports liability for
organizations. Quoting Kadic v. Karadzic, 70 F.3d 232, 241
(2d Cir. 1995), they reason that because the Congress enacted
the TVPA in order “to codify the cause of action” recognized
by the Alien Tort Statute, 28 U.S.C. § 1350, and to “extend
that cause of action to plaintiffs who are U.S. citizens,” and
because the ATS permits a plaintiff to sue an organization, the
TVPA must do also. See Sinaltrainal, 578 F.3d at 1263
(“corporate defendants are subject to liability under the
ATS”). But see Kiobel v. Royal Dutch Petroleum Co., 621
 7
F.3d 111, 120 (2d Cir. 2010) (ATS does not confer
jurisdiction over claims against corporations). *

We reject the Rahims’ argument because the structure of
the TVPA confirms what the plain text of the statute shows:
The Congress used the word “individual” to denote only
natural persons. The liability provision of the statute uses the
word “individual” five times in the same sentence — four
times to refer to the victim of torture or extrajudicial killing,
which could be only a natural person, and once to the
perpetrator of the torture or killing. § 1350, note § 2(a). The
Rahims advance no cogent reason, and we see none, to think
the term “individual” has a different meaning when referring
to the victim as opposed to the perpetrator. See Bowoto, 621
F.3d at 1127 (“There is no indication Congress intended
‘individual’ to have a variety of meanings throughout the
TVPA”); Comm’r v. Lundy, 516 U.S. 235, 250 (1996) (“the
normal rule of statutory construction” is “that identical words
used in different parts of the same act are intended to have the
same meaning”) (internal quotation marks and citations
omitted). We note also the liability provision uses the word
“person” in reference to those “who may be a claimant in an
action for wrongful death,” § 1350, note § 2(a)(2); because a
claimant could be a non-natural person, such as the decedent’s
estate, this further supports the significance of the Congress
having used “individual” rather than “person” to identify who
may be sued under the TVPA.

To be sure, there are, as the Rahims note, situations in
which the same word in a single statute has a different scope,
depending upon its precise context. They point to Weaver v.

*
The issue whether corporations may be held liable in a suit
brought under the ATS is pending before this court in Doe v. Exxon
Mobil Corp., No. 09-7125 (D.C. Cir. argued Jan. 25, 2011).
 8
U.S. Information Agency, 87 F.3d 1429 (D.C. Cir. 1996),
where this court said, “Identical words may have different
meanings where the subject-matter to which the words refer is
not the same ..., or the conditions are different, or the scope of
the legislative power exercised in one case is broader than that
exercised in another,” id. at 1437 (internal quotation marks
and citation omitted). Because none of those conditions
obtains here, the more applicable statement in Weaver is the
topic sentence of the same paragraph: “Normally, the same
word appearing in different portions of a single provision or
act is taken to have the same meaning in each appearance.”
Id.

In their reply brief, the Rahims for the first time argue in
the alternative the defendants are secondarily liable for
Rahim’s death either pursuant to the principle of respondeat
superior or for aiding and abetting his killer(s). See
Sinaltrainal, 578 F.3d at 1258 n.5 (“the TVPA permits aiding
and abetting liability”); but see Bowoto, 621 F.3d at 1128
(rejecting argument plaintiffs could sue corporation “under
the TVPA upon a theory of ‘aiding and abetting’”). This
argument comes too late. Sitka Sound Seafoods, Inc. v.
NLRB, 206 F.3d 1175, 1181 (D.C. Cir. 2000) (“In order to
prevent ... sandbagging of appellees and respondents, we have
generally held that issues not raised until the reply brief are
waived”) (internal quotation marks and citation omitted). In
any event, we doubt the Rahims could prevail upon such a
theory of liability. As the Ninth Circuit observed, even if we
assume some form of vicarious liability is possible, the text of
the TVPA still “limits such liability to individuals,” Bowoto,
621 F.3d at 1128, and we have already seen that in this statute
“individual” comprises only natural persons.

In sum, we hold the TVPA does not permit a suit against
either the Palestinian Authority or the PLO. Accordingly, we
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affirm the judgment of the district court dismissing the
Rahims’ claim under the TVPA.

C. Federal Common Law

The Rahims also advance a claim against the Palestinian
Authority and the PLO under “customary international law, as
a part of federal common law,” over which this court has
federal-question jurisdiction pursuant to 28 U.S.C. § 1331. In
response, the defendants maintain the Supreme Court’s
opinion in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004),
precludes such a claim. They also rely upon a recent Ninth
Circuit decision, Serra v. Lappin, 600 F.3d 1191 (2010), in
which the court rejected the idea that any federal statute other
than the ATS “recognizes a general cause of action under the
law of nations.” Id. at 1197, 1197–98 n.7 (“If any plaintiff
could bring any claim alleging a violation of the law of
nations under federal-question jurisdiction, there would be no
need for statutes such as the ATS and the [TVPA], which
recognize or create limited causes of action for particular
classes of plaintiffs (aliens) or particular violations (torture)”).

As the defendants note, the Supreme Court in Sosa
cautioned against reading § 1331 to imply a federal common
law claim for a violation of the law of nations. One issue in
that case was whether the plaintiff had a remedy under the
ATS against a foreign national whom the Drug Enforcement
Administration had hired to abduct the plaintiff from Mexico.
542 U.S. at 697–98. The Court explained that although the
ATS is a “jurisdictional statute creating no new causes of
action,” the “historical materials” indicate it “was intended to
have practical effect the moment it became law” in 1789. Id.
at 724. Accordingly, the Court concluded, “The jurisdictional
grant” in the ATS “is best read as having been enacted on the
understanding that the common law would provide a cause of
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action for” a “modest number of international law violations,”
including at least “Blackstone’s three primary offenses:
violation of safe conducts, infringement of the rights of
ambassadors, and piracy.” Id. Because nothing between the
enactment of the ATS and our modern case law “has
categorically precluded federal courts from recognizing a
claim under the law of nations as an element of common
law,” the Court added that federal courts today may consider
“new cause[s] of action” under the ATS, but only with “great
caution.” Id. at 724–28.

The Supreme Court also went on, however, to caution
that its decision should not be read as “imply[ing] that every
grant of jurisdiction to a federal court carries with it an
opportunity to develop common law.” Id. at 731 n.19.
Indeed, the Court expressly distinguished the ATS — under
which a cause of action for a violation of the law of nations
could be recognized — from § 1331, stating: “Section 1350
[i.e., the ATS] was enacted on the congressional
understanding that courts would exercise jurisdiction by
entertaining some common law claims derived from the law
of nations,” whereas federal-question jurisdiction pursuant to
§ 1331 was not “extended subject to any comparable
congressional assumption”; indeed a “more expansive
common law power related to 28 U.S.C. § 1331” may not be
“consistent with the division of responsibilities between
federal and state courts after Erie.” Id.

Accordingly, following the Supreme Court’s guidance in
Sosa, we hold the Rahims do not have a cause of action
cognizable under § 1331 for an alleged violation of federal
common law. The district court correctly so held in
dismissing this aspect of their complaint.
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III. Conclusion

For the foregoing reasons, the judgment of the district
court is
Affirmed.