Kiobel v. Royal Dutch Petroleum Co.
642 F.3d 379
2d Cir.
2011
Check Treatment
Docket

Esther KIOBEL, individually and on behalf of her late husband, Dr. Barinem Kiobel, Bishop Augustine Numene John-Miller, Charles Baridorn Wiwa, Israel Pyakene Nwidor, Kendricks Dorle Nwikpo, Anthony B. Kote-Witah, Victor B. Wifa, Dumle J. Kunenu, Benson Magnus Ikari, Legbara Tony Idigima, Pius Nwinee, Kpobari Tusima, individually and on behalf of his late father, Clemente Tusima, Plaintiffs-Appellants-Cross-Appellees, v. ROYAL DUTCH PETROLEUM CO., Shell Transport and Trading Company PLC, Defendants-Appellees-Cross-Appellants, Shell Petroleum Development Company of Nigeria, Ltd., Defendant.

Nos. 06-4800-cv, 06-4876-cv.

United States Court of Appeals, Second Circuit.

Feb. 4, 2011.

379

PRESENT: DENNIS JACOBS, Chief Judge, JOSÉ A. CABRANES, ROSEMARY S. POOLER, ROBERT A. KATZMANN, REENA RAGGI, RICHARD C. WESLEY, PETER W. HALL, DEBRA ANN LIVINGSTON, GERARD E. LYNCH and DENNY CHIN, Circuit Judges.

port any improper use of force, write a truthful report when force is used, and cooperate in any investigation. There was an ample basis to conclude that the defendants, as officers at a facility that housed federal prisoners, were aware of the DOJ‘s policy of investigating allegations of excessive force at QPCF.

Finally, the defendants contend that the Eguridu assault was “too attenuated” from the subsequent federal investigation to support a conviction under § 1519. We disagree. OIG‘s investigation commenced within several months of the incident, and, in any case, § 1519 does not require the existence or likelihood of a federal investigation. See (“[I]mposing a requirement that the matter develop into a formal investigation ignores the plain meaning of [§ 1519] and the legislative history.“), rev‘d on other grounds, . Wells indeed concedes that “there is no requirement that an investigation or proceeding be underway at the time of a defendant‘s action.” Wells Br. 13.

Accordingly, we find no basis to reverse the defendants’ convictions for obstruction of justice under 18 U.S.C. § 1519.

CONCLUSION

We have considered the defendants’ arguments and find them to be without merit. We hold that an internal investigation by a privately owned prison that houses federal prisoners of an allegation of excessive force involves a “matter within the jurisdiction” of the Department of Justice for purposes of 18 U.S.C. § 1519. For the reasons stated herein and in the accompanying summary order, the judgments of the district court are AFFIRMED.

Carey R. D‘Avino, Esq., Berger & Montague, P.C., Philadelphia, PA, for Plaintiffs-Appellants-Cross-Appellees.

F. Thomas Rafferty, Esq., Rory O. Millson, Esq., Cravath Swaine & Moore LLP, New York, NY, for Defendants-Appellees-Cross-Appellants.

ORDER

Following disposition of this appeal on September 17, 2010, an active judge of the Court, together with a senior judge, requested a poll on whether to rehear the case in banc. A poll having been conducted and there being no majority favoring in banc review, rehearing in banc is hereby DENIED.

DENNIS JACOBS, Chief Judge, concurring in the denial of rehearing in banc:

I concur in the denial of rehearing in banc for the reasons set forth in my opinion concurring in the denial of rehearing by the panel.

GERARD E. LYNCH, Circuit Judge, joined by ROSEMARY S. POOLER, ROBERT A. KATZMANN, and DENNY CHIN, Circuit Judges, dissenting from the denial of rehearing in banc:

Because I believe that this case presents a significant issue and generates a circuit split, see , and because I believe, essentially for the reasons stated by Judge Leval in his scholarly and eloquent concurring opinion, , that the panel majority opinion is very likely incorrect as to whether corporations may be found civilly liable under the Alien Tort Statute for violations of such fundamental norms of international law as those prohibiting war crimes and crimes against humanity, I would rehear the case en banc. I therefore respectfully dissent.

KATZMANN, Circuit Judge, dissenting from the denial of rehearing in banc:

In this matter of extraordinary importance, this court divided 5-5 as to whether to proceed to in banc rehearing. In voting in favor of rehearing this case in banc, I fully concur in Judge Lynch‘s dissent. I make these additional comments.

Some of the points of disagreement between the panel majority and Judge Leval relate to the views that I expressed in my concurring opinion in . In that opinion, I concluded that courts under the Alien Tort Claims Act, 28 U.S.C. § 1350 (“ATCA“), should “determine whether the alleged tort was in fact committed in violation of the law of nations, and whether this law would recognize the defendants’ responsibility for that violation.” at 270 (Katzmann, J., concurring) (internal quotation marks and citation omitted). In , the unanimous panel—Chief Judge Jacobs, Judge Leval, and Judge Cabranes—adopted this analysis as the “law of this Circuit,” and held that we must look “to international law to find the standard for accessorial liability” under the ATCA, at 258-59.

I write separately to respond to the contentions by the panel majority that “[my] reasoning in Khulumani leads to the inescapable conclusion” that corporations cannot be liable under the ATCA, , and that Judge Leval‘s reasoning disregarded my Khulumani opinion by ignoring the rulings of international criminal tribunals with respect to corporate liability, at 146-47.1 I disagree. I see no inconsisten-cy between the reasoning of my opinion in Khulumani and Judge Leval‘s well-articulated conclusion, with which I fully agree, that corporations, like natural persons, may be liable for violations of the law of nations under the ATCA.

Notes

1
As to the status of corporate liability under the ATCA, my concurring opinion in Khulumani observed that “[w]e have repeatedly treated the issue of whether corporations may be held liable under the ATCA as indistinguishable from the question of whether private individuals may be.” (Katzmann, J., concurring). However, I stated that “we need not reach the issue at this time” because “[t]his argument was not raised by the defendants on appeal and therefore the issue was not briefed by the parties.” at 282-83.
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