Note: Today's post is co-authored with Lauren DeMartini, a student at NYU Law School, who attended arguments in San Francisco; thank you Lauren!
San Francisco, 14 June 2010 - On Monday, lawyers for a group of Nigerian environmental activists argued an appeal before the Ninth Circuit in Bowoto v. Chevron. This landmark case was the first human rights civil suit against a corporation to be tried before an American jury. Plaintiffs argue that the District Court made four significant errors during trial: the jury instructions on battery claims involved mistakes of law, the finding that the Death on the High Seas Act (DOHSA) preempts claims under the Alien Tort Statute was unsupported, irrelevant and prejudicial evidence was admitted, and the ruling that the Torture Victims Protection Act (TVPA) does not apply to corporations was in error. A case pitting oil giant Chevron against Nigerian villagers has predictably piqued the interest of activists and corporate counsel around the world, and Monday's arguments were the latest installments in this closely-watched situation.
Background: Nigerian "Kill and Go" Squads Raid Niger Delta Protesters at a Chevron Oil Platform
With counsel from EarthRights International, the Center for Constitutional Rights, Traber & Voorhees, and Hadsell & Stormer, four Nigerian plaintiffs sued Chevron for its complicity in brutal attacks against nonviolent demonstrators who were protesting the economic and environmental harm resulting from Chevron's oil production in the Niger Delta.
The tragic circumstances of the attack on the demonstrators are relatively uncontested. Chevron Nigeria Ltd. (CNL) hired and transported Nigerian security forces to the platform after the demonstrators had already negotiated an agreement to leave that morning. These security forces, supervised by CNL and transported in a company helicopter, opened fire on the protestors, shooting four of them. Larry Bowoto was shot but survived, Arolika Irowarinun was shot and killed, Bassey Jeje was attacked and injured, and Bola Oyinbo was detained and tortured.
Plaintiffs seek compensation for victims and their families. They have brought claims for torture and cruel, inhuman, and degrading treatment under the Alien Tort Statute (ATS), a U.S. law that permits foreign citizens to bring civil suits in the United States courts for human rights violations committed outside the U.S. Plaintiffs also brought claims for wrongful death and assault and battery under both Nigerian and California law. Plaintiffs appealed this case after the jury found in favor of defendants on all charges. Read more on the jury trial here, here, and here.
Theresa Traber, counsel for plaintiffs, began her argument by noting the serious error of the district court's jury instruction on the battery claims under Nigerian and Californian law. The three-judge panel, comprised of Judges Schroeder, Bybee (yes, that Bybee), and Panner, also focused most of their questioning to plaintiff and defense counsel on these issues. Plaintiffs argue that Chevron-supervised Nigerian forces are guilty of assault and battery because they used unreasonable force against the protestors. Originally, the District Court Judge ruled that under Nigerian battery law, defendants had the burden to prove their affirmative defenses (such as self-defense) beyond a reasonable doubt. At the jury instruction conference, however, the District Court Judge changed her position, ruling that plaintiffs had the burden to prove unreasonable use of force. No documentation exists to explain the District Court's changed position. Listening to Monday's appeals arguments, Judge Schroeder seemed particularly frustrated by the lack of explanation for this shift: was it a well-reasoned decision or a mistake of law?
A similar burden of proof issue arose under California battery law, where an exception relieves police officers of the burden to prove their use of force was reasonable in certain circumstances. Plaintiffs argue that the issue relied on the extent to which Nigerian security forces were acting in their official capacity as police officers, or in a private capacity as security guards for CNL--a question that the District Judge failed to present to the jury. Furthermore, plaintiffs note that the exception in Californian law only applies when police officers use force while arresting or detaining an individual. Since Nigerian activist Bola Oyinbo was already held in custody, the reasonable force exemption would not apply.
Judge Bybee hinted at a desire to avoid a second lengthy jury trial when he asked plaintiffs' counsel to describe scenarios that would result if the court should reverse on the grounds of Nigerian or Californian law. While the interpretation of Nigerian battery law would concern all four plaintiffs, only one would be impacted by the decision on Californian battery law. A reversal on the California battery claim, then, would result in a less complicated retrial--an attractive option for the Court.
The third issue raised in arguments turned on whether the claim for Irowariun's shooting death at the hands of Nigerian forces flown in a Chevron helicopter was properly raised as a violation of international law under the ATS, or whether the DOHSA governs all wrongful deaths at sea. At trial, the District Court held that the plaintiff could not bring extrajudicial killing claims under the ATS, because the DOHSA provided the only cause of action for such a death. The Plaintiffs argue that Congress never intended the DOHSA to supersede international law claims brought under the ATS. They maintain that DOHSA was passed to address the absence of any remedy for wrongful death on the high seas, and that without a clear intent to displace international law claims, both remedies should be given full effect. Chevron disagrees, conveniently arguing that the DOHSA overrides the ATS. Upon questioning from Judge Bybee, counsel for Chevron maintained that DOHSA would even preempt claims based on piracy. This assertion seems doubtful, given that piracy was clearly one of the original violations of the "Law of Nations" contemplated by the First Congress when it passed the Alien Tort Statute as part of the Judiciary Act of 1789. Indeed, in Sosa v. Alvarez-Machain, the U.S. Supreme Court noted the prohibition of piracy as a model for the type of specific, universally-accepted norms of international law that fall within the scope of the ATS.
Issues surrounding the Torture Victim Protection Act (TVPA) received little attention in either defendants' or plaintiffs' argument. The District Court adopted a strict interpretation of the term "individual" in the TVPA to exclude corporations, thereby exempting Chevron from plaintiff's wrongful death claim under the statute. District courts are divided on the inclusion of corporations, and Appeals Courts have demonstrated reluctance to come down on either side. It is likely that the judges will dodge this decision by adopting defense counsel's argument that the dismissal of the TVPA claim is irrelevant since the jury rejected wrongful death claims with lower evidentiary standards than is required by the Act.
The final issue on appeal is plaintiffs' assertion that admission of certain evidence of violent acts was wrongful, irrelevant, and unfairly prejudicial. Admitted evidence included photographs of protestors butchering a sea turtle for dinner, prejudicial hearsay statements from two individuals not present during the incident, discussion of incidents that occurred on a tugboat after the plaintiffs had already been shot or detained, and evidence of four unrelated kidnappings. Plaintiffs' dispute the relevance of this evidence because these incidents did not involve plaintiffs and occurred long before or shortly after the attack and therefore should not be viewed as probative of intent or purpose. They argue that the relevance of this evidence is substantially outweighed by unfair prejudice and should have been excluded under the Rule 403 balancing test. While these issues were thoroughly discussed in both parties' briefs, they were not addressed in depth at the hearing. The District Court's decision to admit evidence is reviewed with considerable deference.
There is some cause to believe the case will be overturned partially. Judges Schroeder and Bybee both exhibited interest in plaintiffs' arguments on the battery law instructions and posed challenging questions to defense counsel. A ruling in favor of plaintiffs would lead to a retrial on the battery claims: for all four plaintiffs--should the Court reverse on the grounds of Nigerian law, or for one plaintiff--should they opt to reverse under Californian law. There is little clue how the judges will rule on the other three issues on appeal since they were barely discussed during the arguments. The judges did not say when they would issue a decision. That said, a number of U.S. corporations with operations overseas are sure to be anxiously awaiting the decision, as it is likely to influence similar cases pending against them. See here and here.
Stay tuned for an update when the 9th Circuit Court of Appeals issues its decision.