Lead Opinion
Opinion for the Court filed by Circuit Judge SENTELLE.
Dissenting opinion filed by Circuit Judge KAVANAUGH.
Exxon Mobil Corporation and several of its wholly-owned subsidiaries (hereinafter “Exxon”) appeal from a district court order denying their motion to dismiss. Exxon argues that the district court should have granted the motion to dismiss because the plaintiffs’ claims are non-justicia-ble political questions. We need not reach the merits of Exxon’s arguments because we do not have jurisdiction over this appeal. In the alternative, Exxon has requested that we treat its appeal as a petition for a writ of mandamus compelling the district court to dismiss these claims. We deny this petition because Exxon has not established a “clear and indisputable” right to have the plaintiffs’ claims dismissed.
I.
Pursuant to a contract with the Indonesian government, Exxon operates a large natural gas extraction and processing facility in the Aceh province of Indonesia. The plaintiffs-appellees are eleven Indonesian villagers from Aceh who allege that Exxon’s security forces committed murder, torture, sexual assault, battery, false imprisonment, and other torts. Plaintiffs allege that these security forces were comprised exclusively of members of the Indonesian military, and that Exxon retained these soldiers as guards for the natural gas facility even though Exxon was aware that the Indonesian army had committed human rights abuses in the past. Plaintiffs also allege that these security forces acted under the “direction and control” of Exxon, and that Exxon provided “weapons, funding, military equipment, and other supplies” to these soldiers.
On June 11, 2001, the plaintiffs sued Exxon and PT Arun LNG Company (an unrelated entity) in United States District Court for the District of Columbia. Plaintiffs sought relief under the Alien Tort Statute and the Torture Victims Protection Act. They also brought common law tort claims for wrongful death, assault, battery, arbitrary arrest and detention, false imprisonment, intentional and negligent infliction of emotional distress, negligence (in hiring and supervision), and conversion.
While the motion to dismiss was pending, the district court solicited the State Department’s opinion about whether adjudication of the plaintiffs’ claims would interfere with U.S. foreign policy interests. On July 29, 2002, the Legal Adviser to the State Department filed a letter with the district court stating that this litigation “would in fact risk a potentially serious adverse impact on significant interests of the United States.” In particular, the State Department was concerned that this suit would harm relations with Indonesia— a key ally in the war on terrorism — and that it would discourage foreign investment in Indonesia. However, the letter also stated that these potential effects on U.S.-Indonesian relations “cannot be determined with certainty.” The letter noted that:
Much of this assessment is necessarily predictive and contingent on how the case might unfold in the course of litigation. E.g., the nature, extent, and intrusiveness of discovery; the degree to which the case might directly implicate matters of great sensitivity to the Government of Indonesia [“GOI”] and call for judicial pronouncements on the official actions of the GOI with respect to the conduct of its military activities in Aceh; the effect that a decision in favor of plaintiffs might encourage secessionist activities in Aceh and elsewhere in Indonesia; whether the case were to go to a jury and, if so whether a substantial monetary award were to be imposed on Exxon Mobil; how other large commercial interests might interpret such a judgment when making investment decisions in Indonesia.
The State Department also attached a letter from the Indonesian ambassador stating that Indonesia “cannot accept” a suit against an Indonesian government institution, and that U.S. courts should not be adjudicating “allegations of abuses of human rights by the Indonesian military.” In July 2005, the State Department filed another letter expressing “concerns” about the initial discovery plan in this case; the plaintiffs’ proposed discovery plan of May 16, 2005 involved relatively broad discovery that could extend to documents located in Indonesia.
On October 14, 2005, the district court issued an opinion and order granting in part and denying in part the motion to dismiss. Doe v. Exxon Mobil Corp.,
The issues and parties in this case have been tailored to a narrower question: did U.S. corporations in their effort to secure their pipeline in Indonesia violate U.S. state tort law? Litigation and discovery on this issue, if conducted with care, should alleviate the State Department’s concerns about interfering with Indonesia’s sovereign prerogatives while providing a means for plaintiffs to obtain relief through their garden-variety tort claims. It should be feasible, for instance, for plaintiffs to perpetuate testimony and satisfy document discovery requirements outside Indonesia.
Id. at 29-30.
Exxon filed an interlocutory appeal, contending that the district court should have dismissed the plaintiffs’ common law tort claims as non-justiciable political questions.
II.
Before we can consider the merits of Exxon’s political question arguments, we must determine whether we have jurisdiction to hear this appeal. See, e.g., Steel Co. v. Citizens for a Better Env’t,
A.
Our appellate jurisdiction is defined by statute as follows: “The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States ... except where a direct review may be had in the Supreme Court.”
In applying this three-factor test, the Supreme Court has repeatedly emphasized the narrowness of the collateral order doctrine. As the Court stated in a recent decision, “we have not mentioned applying the collateral order doctrine recently without emphasizing its modest scope.” Will v. Hallock,
[T]he “narrow” exception should stay that way and never be allowed to swallow the general rule ... that a party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated.
Digital Equip. Corp. v. Desktop Direct, Inc.,
B.
The issue before us in the instant case is whether a district court’s denial of a defendant’s motion to dismiss on political question grounds is an immediately appealable collateral order.
At the outset, we note that the first two requirements for invocation of the collateral order doctrine are satisfied in this case. The district court “conclusively determine[d]” the political question issue by denying Exxon’s motion to dismiss and allowing the litigation to proceed. Exxon Mobil Corp.,
Thus, we turn to the third requirement of the collateral order doctrine, which is whether the order in question will be “effectively unreviewable on appeal from final
We do not mean to suggest that a claim of a “right to avoid trial” is inherently sufficient to meet the third requirement of the collateral order doctrine. If parties could take an immediate appeal every time they asserted a “right to avoid trial,” this would “leave the final order requirement of § 1291 in tatters.” See Will,
Moreover, this Court has expressly held that a party is not entitled to an appeal every time a district court denies a motion to dismiss based upon the separation of powers. In United States v. Cisneros,
We do not doubt that Cisneros, like any criminal defendant, may raise separation of powers as a defense.... But it scarcely follows that whenever a defendant relies on the separation-of-powers doctrine, the defendant’s right must be treated as if it rested on an “explicit ... guarantee that trial will not occur.” Midland Asphalt Corp.,489 U.S. at 801 ,109 S.Ct. 1494 . Most separation-of-powers claims are clearly not in that category.
Id. (internal citations omitted). This Court acknowledged that “a few” separation of powers claims may be immediately appealable, but it only specifically referred to claims based on immunity. Id. Given that Cisneros’ separation of powers arguments were not based upon “an immunity from standing trial,” this Court held that it did not have jurisdiction over the appeal under the collateral order doctrine. Id. at 769-70. Thus, in Cisneros this Court made clear that — outside the context of immunity — a defendant is not entitled to an appeal from a district court order denying a motion to dismiss based on the sepa
Exxon has not directed us to — nor have we found — a single case in which a federal appeals court held that denial of a motion to dismiss on political question grounds is an immediately appealable collateral order. Exxon relies heavily upon Rostenkowski and 767 Third Avenue Associates v. Consulate General of Yugoslavia,
The Second Circuit’s decision in 767 Third Avenue Associates is also of no help to Exxon. In that case, the court held that an “abstention-based stay order” is a “final decision” under § 1291, and thus the plaintiffs may immediately appeal such an order.
Finally, Exxon also argues that the political question issue will be effectively un-reviewable after final judgment because during the course of this litigation, Exxon may be compelled to produce documents or information that are protected from disclosure under Indonesian law. Exxon contends that these disclosures may violate Indonesian law and subject the company
In sum, we hold that we do not have jurisdiction over Exxon’s appeal under the collateral order doctrine. Were we to allow defendants to appeal every time a district court denied a motion to dismiss based upon political question grounds, we would be substantially expanding the scope of the collateral order doctrine. This would be directly contrary to the Supreme Court’s statements that the doctrine is “narrow and selective” and “should never be allowed to swallow the general rule ... that a party is entitled to a single appeal, to be deferred until final judgment.” See Will,
III.
In the alternative, Exxon requests that we treat its appeal as a petition for a writ of mandamus. A writ of mandamus is available “to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Mallard v. U.S. Dist. Court for the S. Dist. of Iowa,
At the outset, we note that the district court has taken several steps to limit the scope of this litigation. For example, the court dismissed the plaintiffs’ claims against a natural gas company that was partially owned by the Indonesian government because including this entity as a party would “create a significant risk of interfering in Indonesian affairs and thus U.S. foreign policy concerns.” Exxon Mobil Corp.,
We disagree with Exxon’s contention that there is a conflict between the views of the State Department and those of the district court. In a letter dated July 29, 2002, the Legal Adviser of the State Department noted that adjudication of the plaintiffs’ claims would “risk a potentially serious adverse impact on significant interests of the United States.” However, the letter also contained several important qualifications. It noted that the effects of this suit on U.S. foreign policy interests “cannot be determined with certainty.” Moreover, the letter stated that its assessment of the litigation was “necessarily predictive and contingent on how the case might unfold in the course of litigation.” Most importantly, the State Department emphasized that whether this case would adversely affect U.S. foreign policy depends upon “the nature, extent, and intrusiveness of discovery.” We interpret the State Department’s letter not as an unqualified opinion that this suit must be dismissed, but rather as a word of caution to the district court alerting it to the State Department’s concerns. Indeed, the fact that the letter refers to “how the case might unfold in the course of the litigation” shows that the State Department did not necessarily expect the district court to immediately dismiss the case in its entirety. Thus, we need not decide what level of deference would be owed to a letter from the State Department that unambiguously requests that the district court dismiss a case as a non-justiciable political question. See Sosa v. Alvarez-Machain,
We note that several other circuits have refused to invoke the political question doctrine to dismiss claims that were very similar to those in the instant case. For example, in Sarei v. Rio Tinto, PLC,
Similarly, in Linder• v. Portocarrero,
Although the aforementioned cases are not binding on this Court because they are from other circuits, they do demonstrate that Exxon has not established a “clear and indisputable” right to have the plaintiffs’ claims dismissed as non-justiciable. Exxon cites no cases in which a federal court has held that, in a matter involving like issues and comparable circumstances (ie., claims by a private party against a private United States corporation), the complaint must be dismissed under the political question doctrine. And we are aware of no such authority.
In its brief, Exxon asserts that Ex parte Republic of Peru,
When the Secretary [of State] elects ... to settle claims against the vessel by diplomatic negotiations between the two countries rather than by continued litigation in the courts, it is of public importance that the action of the political arm of the Government taken within its appropriate sphere be promptly recognized, and that the delay and inconvenience of a prolonged litigation be avoided by prompt termination of the proceedings in the district court.
Id. at 587,
That principle is that courts may not so exercise their jurisdiction, by the seizure and detention of the property of a friendly sovereign, as to embarrass the executive arm of the government in conducting foreign relations.
Id. at 588,
Exxon also relies upon In re Austrian & German Holocaust Litigation,
Paragraph 4(b) [of the district court’s order] seemingly requires the German legislature to make a finding of legal peace and to do so before its summer recess. It would be beyond the authority of the court so to trammel on the prerogatives of a legislature in the United States. Much less does the court have the power to require such actions of the legislature of a foreign sovereign.
Id. at 164. Additionally, the court held that:
The last sentence of paragraph 7 appears to indicate that if the German legislature failed to change German law, the district court could or would vacate these dismissals. It is not the office of the court, however, to decide what legislation should be enacted; and the refusal of a legislature, within the scope of its own authority, to enact or change a law is not a valid ground for vacatur of a final judgment.
Id. at 165. Thus, in the Holocaust Litigation case, the Second Circuit issued a writ of mandamus because the district court lacked authority “to dictate to legislatures what laws shall be passed.” Id. This is a far cry from the order being challenged in the instant case, in which the district court allowed a common law tort suit to proceed against a private defendant.
In conclusion, although we need not resolve the political question issue on the merits at this time, we hold that Exxon has not established a “clear and indisputable” right to have the plaintiffs’ claims dismissed. In so doing, we note that we have entered no holding inconsistent with our dissenting colleague’s doctrinal views on deference owed the executive in matters of foreign policy. None of the cases cited by our colleague stand for the proposition that we should grant a mandamus for which the executive has not prayed. As we noted above, the State Department emphasized in its communications with the district court that “whether this case would adversely affect U.S. foreign policy depends upon ‘the nature, extent, and intrusiveness of discovery.’ ” See page 16, supra. Since that correspondence the district court has dismissed some claims and limited discovery. Since that limitation, the State Department has made no further request of the district court, and has never requested the dismissal of the action against Exxon. The executive did not intervene to seek this mandamus, nor join the petition for mandamus filed by Exxon. Had the executive taken any of these measures, then the question raised by our dissenting colleague would have been before the district court. On the present record, however, the issue before us is whether Exxon is entitled to mandamus at this time. For the reasons set forth
IV.
We hold that Exxon’s appeal does not fall within the narrow “collateral order” doctrine, and therefore, this appeal must be dismissed for want of jurisdiction. We also deny Exxon’s request, in the alternative, for a writ of mandamus because Exxon has not established a “clear and indisputable” right to have these claims dismissed under the political question doctrine.
So ordered.
Notes
. There are a few types of interlocutory appeals that are expressly permitted by statute, none of which are applicable in the instant case. For example, 28 U.S.C. § 1292(a) provides for interlocutory appeals from: (1) orders "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to modify injunctions”; (2) orders appointing receivers or refusing to end a receivership; and (3) orders resolving certain issues in admiralty cases. Section 1292(b) permits circuit courts — -in their discretion — to consider an interlocutory appeal when a district judge certifies that an order "involves a controlling question of law” and that "immediate appeal from the order may materially advance the ultimate termination of the litigation.”
. Although Cisneros was a “separation of powers” case, it is still highly relevant to the instant case because the political question doctrine is "primarily a function of the separation of powers.” Schneider v. Kissinger,
Dissenting Opinion
dissenting.
I respectfully dissent. In my judgment, allowing this lawsuit to proceed is inconsistent with bedrock principles of judicial restraint that the Supreme Court and this Court have articulated in cases touching on the foreign policy and foreign relations of the United States.
Citing the Alien Tort Statute and international law (and in some cases also state law and the Torture Victim Protection Act of 1991), foreign citizens have begun bringing human rights lawsuits against multinational corporations in U.S. courts. See, e.g., Doe v. Unocal Corp.,
In this case, 11 Indonesian citizens sued Exxon; plaintiffs claim they were injured in Indonesia by members of the Indonesian military who provide security for Exxon in Indonesia. The Government of Indonesia has objected to the case as an intrusion on its sovereignty. And the Executive Branch has stated that the lawsuit will adversely affect the foreign policy interests of the United States — particularly U.S. relations with Indonesia, which is the largest Muslim nation in the world and has worked closely with the United States since September 11, 2001, in the ongoing war against al Qaeda and related radical Islamic terrorist organizations. In a lengthy letter, the State Department’s Legal Adviser explained to the District Court how “adjudication of this lawsuit at this time would in fact risk a potentially serious adverse impact on significant interests of the United States, including interests related directly to the on-going struggle against international terrorism.” Under the precedents of the Supreme Court— including Sosa v. Alvarez-Machain,
I
Exxon Mobil Corporation’s Indonesian subsidiary maintains a large natural gas
Plaintiffs in this case are Indonesian citizens who reside in the Aceh Province. They allege they were injured by Indonesian military personnel who worked for Exxon. In 2001, plaintiffs sued Exxon in the U.S. District Court for the District of Columbia to recover for those injuries. Plaintiffs brought claims against Exxon under the Alien Tort Statute and international law, the Torture Victim Protection Act, and state tort law. Plaintiffs asserted the same claims against PT Aran LNG Company, a natural gas entity that Exxon and the Indonesian government jointly own.
The fourth largest nation in the world (and the largest Muslim nation), Indonesia has been a key partner of the United States since September 11, 2001, in the ongoing war against al Qaeda and related radical Islamic terrorist organizations. This case — which alleges that Indonesian military personnel injured Indonesian citizens in Indonesia — has triggered serious objections from the Government of Indonesia about intrusion on its sovereignty. The State Department has carefully considered Indonesia’s concerns and how the lawsuit might adversely affect U.S. interests. In 2002, the Legal Adviser for the State Department informed the District Court that “adjudication of this lawsuit at this time would in fact risk a potentially serious adverse impact on significant interests of the United States, including interests related directly to the on-going struggle against international terrorism.” Deferred Appendix (D.A.) at 182. The State Department “anticipate[d] that adjudication of this case will be perceived in Indonesia as a U.S. court trying the GOI for its conduct of a civil war in Aceh.” D.A. 183. In the Department’s view, “[t]he Indonesian response to such perceived U.S. ‘interference’ in its internal affairs could impair cooperation with the U.S. across the full spectrum of diplomatic initiatives, including counterterrorism, military and police reform, and economic and judicial reform.” D.A. 183-84. The State Department explained:
This lawsuit could potentially disrupt the on-going and extensive United States efforts to secure Indonesia’s cooperation in the fight against international terrorist activity. Indonesia is the fourth largest state in the world, with a population of some 210 million. It is also the largest Muslim nation, and serves as a focal point for U.S. initiatives in the ongoing war against Al Qaida and other dangerous terrorist organizations. U.S. counter-terrorism initiatives could be imperiled in numerous ways if Indonesia and its officials curtailed cooperation in response to perceived disrespect for its sovereign interests.
D.A. 184. The State Department further stated that the litigation “may also diminish our ability to work with the Government of Indonesia (‘GOI’) on a variety of important programs, including efforts to promote human rights in Indonesia.” D.A. 182. The Department also noted that “[tjhis litigation appears likely to further discourage foreign investment” in Indonesia, which “in turn, could have decidedly negative consequences for the Indonesian economy”; if a downturn in Indonesia’s economy were to “breed instability it would adversely affect U.S. interests.” D.A. 185. In addition, the Department stated that the suit could have a negative
The State Department supported its statement with a letter sent by the Indonesian Ambassador to the Deputy Secretary of State: “As a matter of principle, we cannot accept the extra territorial jurisdiction of a United States Court over an allegation against an Indonesian government institution, ... the Indonesian military, for operations taking place in Indonesia.” D.A. 188.
In July 2005, the State Department’s Legal Adviser reiterated the concerns first expressed in 2002, informing the District Court that “the concerns set forth in the State Department letter of July 2002 ... remain valid today.” D.A. 244. Along with the State Department’s 2005 letter, the State Department also submitted a letter from the Indonesian Embassy reiterating the concerns the Government of Indonesia first expressed in 2002.
In October 2005, largely in response to the State Department’s submissions, the District Court dismissed plaintiffs’ federal-law claims against Exxon and dismissed all claims against PT Arun LNG Company. In dismissing the federal-law claims against Exxon, the District Court relied on the State Department’s statement that “ ‘adjudication of this lawsuit at this time would in fact risk a potentially serious adverse impact on significant interests of the United States, including interests related directly to the on-going struggle against international terrorism.’ ” Doe v. Exxon Mobil Corp.,
Although it dismissed the federal-law claims, the District Court did not dismiss plaintiffs’ state-law tort claims against Exxon. The District Court stated that litigation and discovery on the state-law claims, “if conducted with care, should alleviate the State Department’s concerns about interfering with Indonesia’s sovereign prerogatives while providing a means for plaintiffs to obtain relief through their garden-variety tort claims.” Id. at 30.
Exxon has filed an interlocutory appeal of the District Court’s denial of Exxon’s motion to dismiss the state-law tort claims. Exxon requests that we entertain its interlocutory appeal under the collateral order doctrine or, in the alternative, that we issue a writ of mandamus requiring dismissal of the state-law tort claims.
II
1. A civil lawsuit in a U.S. court involving a foreign government, foreign officials, or foreign interests may adversely affect relations between the United States and the foreign nation. Such cases therefore pose sensitive separation of powers issues for the Judiciary because the Constitution assigns the Executive and Legislative Branches primary authority over the foreign policy and foreign relations of the United States. See, e.g., Regan v. Wald,
As the courts therefore have recognized, lawsuits that would adversely affect the foreign policy of the United States can pose non-justiciable political questions. See Baker v. Carr,
Courts are not well-equipped to determine on their own, however, whether a particular civil case would have a negative impact on U.S. foreign policy and should be dismissed. In part for that reason, as the Supreme Court has instructed, courts give deference to the Executive Branch when the Executive reasonably explains that adjudication of a particular civil lawsuit would adversely affect the foreign policy interests of the United States. See, e.g., Sosa v. Alvarez-Machain,
Deference to the Executive Branch’s position on the foreign policy implications of a lawsuit traditionally has occurred in cases directly against foreign governments or foreign government officials. See, e.g., Ex parte Peru,
In recent years, foreign citizens have taken Filartiga a step further (and in some cases also cited the 1991 Torture Victim Protection Act) and begun to sue multinational corporations in U.S. courts— often alleging corporate complicity in human rights violations committed by foreign government officials against foreign citizens in foreign countries. See generally Beth Stephens, Sosa v. Alvarez-Machain: “The Door Is Still Ajar” for Human Rights Litigation in U.S. Courts, 70 Brook. L. Rev. 533, 537-38 (2005). Although those cases nominally target corporations and not foreign government officials, federal courts have recognized that the suits still can adversely affect U.S. foreign policy interests. Several federal district courts therefore have applied traditional justiciability principles to this new category of cases against corporations, including deference to the Executive Branch as appropriate. See, e.g., Corrie v. Caterpillar, Inc.,
In its 2004 decision in Sosa, the Supreme Court confirmed that traditional justiciability principles apply to the new category of cases brought by foreign citizens against multinational corporations. The Court took note of the growing litigation against multinational corporations (and recognized the concerns about such litigation). Although the defendant in Sosa was a foreign official and not a corporation, the Supreme Court pro-actively suggested that, for purposes of applying standard justiciability principles, there is no distinction between (i) suits directly against foreign governments or officials and (ii) suits against non-governmental entities that nonetheless may affect U.S. relations with foreign governments. The Court outlined a “policy of case-specific deference to the political branches” to “several class actions seeking damages from various corporations.” Sosa,
In the wake of Sosa, the lower federal courts properly give “serious weight” to Executive Branch statements of interest in human rights cases brought against multinational corporations. See Sosa,
This Court’s decision in Hwang Geum Joo exemplifies proper application of those traditional justiciability principles. In that
In another case involving the foreign policy interests of the United States, this Court also explained that “we grant substantial weight” to State Department statements regarding factual questions that are “at the heart of the Department’s expertise.” In re Papandreou,
All of the above precedents have established the following principle of law: When presented with a suit alleging wrongdoing committed in a foreign country, and particularly a suit implicating the actions of foreign government officials, federal courts should dismiss the complaint on justiciability grounds if the Executive Branch has reasonably explained that the suit would harm U.S. foreign policy interests.
2. Given those precedents and principles, the question in this case is whether the Executive Branch reasonably explained that this case would harm U.S. interests. I believe it clearly has done so.
In 2002 and then again in 2005, the State Department unambiguously stated to the District Court that, for multiple reasons, “adjudication of this lawsuit at this time would in fact risk a potentially serious adverse impact on significant interests of the United States, including interests related directly to the on-going struggle against international terrorism.” D.A. 182. The State Department emphasized that Indonesia is “a focal point for U.S. initiatives in the ongoing war against A1 Qaida and other dangerous terrorist organizations. U.S. counter-terrorism initiatives could be imperiled in numerous ways if Indonesia and its officials curtailed cooperation in response to perceived disrespect for its sovereign interests.” D.A. 184. The Department explained that Indonesia would view this lawsuit as an intrusion on its sovereignty. The Department stated that “[tjhis lawsuit could potentially disrupt the on-going and extensive United States efforts to secure Indonesia’s cooperation in the fight against international terrorist activity.” D.A. 184. The Department identified and explained multiple other effects on foreign relations, including, for example: an adverse impact on human rights objec
In light of the decisions of the Supreme Court (Sosa in particular), this Court’s decisions (Hwang Geum Joo in particular), and the State Department's reasonable explanation of how this litigation would harm U.S. foreign policy interests, this case should be dismissed as a non-justiciable political question. (In reaching this conclusion, my point is that the State Department’s explanation of harms in this case is clearly sufficient to require dismissal of this suit. I do not mean to imply, however, that all of the harms cited by the State Department in this case are necessary in order for courts to give deference to the Executive Branch. In other words, courts defer to the Executive Branch’s reasonable explanation that a case would harm U.S. interests even if the harm is something less than, for example, a negative impact on the war against al Qaeda.)
3. The District Court agreed with the above principles in dismissing the majority of plaintiffs’ claims. In particular, the District Court relied on the State Department’s statement that “ ‘adjudication of this lawsuit at this time would in fact risk a potentially serious adverse impact on significant interests of the United States, including interests related directly to the on-going struggle against international terrorism.’ ” Exxon Mobil Corp.,
Having gone that far, however, the District Court allowed plaintiffs’ state-law claims to move forward. I believe the same justiciability concerns that the District Court identified with respect to the federal-law claims also apply to the state-law claims. Regardless whether plaintiffs are attempting to establish Exxon’s liability for state-law claims or federal-law claims, plaintiffs must prove that members of the Indonesian military engaged in acts of violence in Indonesia against Indonesian citizens. As a result, the District Court necessarily would be “adjudicating the actions of the Indonesian government” when it continues adjudication of plaintiffs’ state-
Because only state-law claims remain, plaintiffs’ case also has a separate doctrinal problem — preemption. As the Supreme Court has stated, the possibility that state law (in this case, D.C. tort law) “will produce something more than incidental effect in conflict with express foreign policy of the National Government ... require[s] preemption of the state law.” Garamendi,
4. For its part, the majority opinion says that the State Department has not “unambiguously ” set forth its position on this lawsuit. The majority opinion seizes on footnote 1 of the State Department’s 2002 Statement of Interest
In the same way that Executive agencies often do when justifying decisions nec
The majority opinion does not grapple, moreover, with the illogic of this reading: Why would the State Department definitively say that “adjudication of this lawsuit at this time would in fact risk a potentially serious adverse impact on significant interests of the United States” if the Department intended only to say that the District Court should make certain changes to the scope of the lawsuit to alleviate possible foreign policy concerns? The majority opinion interprets the footnote to contradict the remainder of the Department’s letter — which shows, I believe, that the majority opinion’s interpretation of the footnote cannot be correct.
The key point here is that the State Department thoroughly explained its reasoning and firmly stated that this suit would harm relations with Indonesia and therefore negatively affect the U.S. war against al Qaeda, among several other adverse effects on significant U.S. interests. As support, the Department attached the Indonesian Ambassador’s letter stating that “we cannot accept the extra territorial jurisdiction of a United States Court over an allegation against an Indonesian government institution.” D.A. 188. In my judgment, under the precedents that guide our analysis in this area, there is no persuasive basis for disregarding the Executive Branch’s statement that “adjudication of this lawsuit at this time would in fact risk a potentially serious adverse impact on significant interests of the United States, including interests related directly to the on-going struggle against international terrorism.” D.A. 182. The majority opinion’s rejection of the definitive and reasoned Executive Branch statement about this lawsuit’s negative impact on America’s prosecution of an ongoing war does not reflect the judicial restraint and deference that the Supreme Court and this Court have required in the sensitive area of foreign policy. See Maj. Op. at 354.
5. In analyzing the justiciability issue, the majority opinion seeks to buttress its conclusion by citing the decisions of “several other circuits” that purportedly “have refused to invoke the political question doctrine to dismiss claims that were very similar to those in the instant case.” Maj. Op. at 354-55. Only one post-Sosa case cited by the majority opinion has addressed the political question doctrine in the context of a State Department Statement of Interest — the Ninth Circuit’s divided decision in Sarei v. Rio Tinto, PLC,
The court in Sarei accepted the premise of the Supreme Court’s statement in Sosa footnote 21 — namely, that courts should defer to the Executive Branch’s reasonable explanations of harm in cases against pri
Ruling on the merits of these allegations will inevitably require passing judgment on the pre-war and war-time conduct of the PNG government. It is this type of judgment that the Statement of Interest indicates may have serious implications for the future of the peace agreement that has been reached, and thus for the foreign policy objectives the executive branch has set. It is also the type of judgment that risks placing the court in the position of announcing a view that is contrary to that of a coordinate branch of government, with all the attendant embarrassment that would ensue. The situation is thus quintessentially one that calls for invocation of the political question doctrine as to each of plaintiffs’ causes of action.
Sarei v. Rio Tinto, PLC,
Ill
The final question here is whether this Court possesses the authority to entertain this interlocutory appeal. In my judgment, the standard for this Court to issue a writ of mandamus is plainly satisfied. To be sure, “[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.” Kerr v. U.S. Dist. Court for N. Dist. of Cal.,
The Supreme Court has made clear that mandamus is appropriate to prevent interference with foreign policy responsibilities that the Constitution has allocated to the Executive and Legislative Branches. In granting a writ of mandamus in Ex parte Republic of Peru, for example, the Supreme Court stated that cases intruding on the foreign policy responsibilities of the Executive Branch can be “of such public importance and exceptional character as to call for the exercise of our discretion to issue the writ.”
The Supreme Court recently reiterated the principles of Ex parte Peru, indicating that mandamus is warranted when a law
The majority opinion suggests that the mandamus principles articulated in Ex parte Peru and reiterated in Cheney are properly applied only in cases in which the property of a foreign government is at stake or a governmental entity is a party to a suit. See Maj. Op. at 355-56. I believe the majority opinion’s attempt to distinguish Ex paHe Peru is misplaced for two reasons — one factual and one legal.
First, as a factual matter, the foreign policy effect of plaintiffs’ claims is not distinct from the effect of claims challenging the property or actions of a foreign government. Establishing liability against Exxon necessarily requires proving that members of the Indonesian military — acting pursuant to a contract entered into by the Indonesian Government — committed acts of violence against Indonesian citizens in Indonesia. Such proof is a necessary component of establishing either Exxon’s vicarious liability for the alleged violent acts or Exxon’s direct liability for negligently hiring the alleged bad actors. And the governmental nature of the allegations is why the Government of Indonesia has objected to this case (and why the Executive Branch is therefore concerned about it). See D.A. 183 (State Department’s 2002 Statement of Interest: “All of the human rights abuses and injuries alleged in the complaint refer to conduct claimed to have been committed by the military and police forces of the GOL”). Therefore, I believe the majority opinion is incorrect to imply that this is somehow just a routine lawsuit involving allegations against a private corporation. Cf. Sosa v. Alvarez-Machain,
Second, apart from that factual hole in the majority opinion’s distinction of Ex parte Peru, the key question for purposes of mandamus (as it is for assessing justici-ability) is whether the Executive Branch has reasonably explained that the foreign policy interests of the United States would be adversely affected — not the identity of the named parties in the lawsuit. In Ex parte Peru, for example, the Supreme Court instructed that a district court should terminate litigation when that litigation adversely affects the foreign policy interests of the United States. See
Finally, the majority opinion also suggests that mandamus is not warranted because the District Court narrowed the litigation to protect U.S. interests. Maj. Op. at 353-54. But the U.S. foreign policy interest here is not simply in avoiding the effects of a final judgment, but is in avoiding the repercussions of the litigation itself. In cases (analogous for these purposes) involving foreign sovereign immunity, courts therefore have recognized that mandamus is an appropriate remedy when the litigation itself could harm the interests underlying sovereign immunity. See, e.g., Ex parte Peru,
IV
Although I disagree with the majority opinion’s resolution of this case, there appears to be common ground about how litigation of the remaining state-law claims should proceed in the District Court. The State Department again will have an opportunity to express its views (previously expressed in 2002 and 2005) regarding this suit. If the State Department were to withdraw its previously stated opposition to the state-law claims, then I would agree that the state-law claims would not be barred by the political question doctrine. See First Nat’l City Bank v. Banco Na-cional de Cuba,
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In light of the precedents of the Supreme Court and this Court, and the State Department’s reasonable explanation of how this lawsuit would harm U.S. interests, I would grant the petition for a writ of mandamus and order dismissal of the complaint as a non-justiciable political question. I respectfully dissent.
The State Department’s footnote 1 states: "Much of this assessment is necessarily predictive and contingent on how the case might unfold in the course of litigation. E.g., the nature, extent, and intrusiveness of discovery; the degree to which the case might directly implicate matters of great sensitivity to the Government of Indonesia and call for judicial pronouncements on the official actions of the GOI with respect to the conduct of its military activities in Aceh; the effect that a decision in favor of plaintiffs might encourage secessionist activities in Aceh and elsewhere in Indonesia; whether the case were to go to a jury and, if so, whether a substantial monetary award were to be imposed on Exxon Mobil; how other large commercial interests might interpret such a judgment when making investment decisions in Indonesia.” D.A. 183 n. 1.