United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 17, 2006 Decided January 12, 2007
No. 05-7162
JOHN DOE, VILLAGE A, ACEH, INDONESIA, ET AL.,
APPELLEES
v.
EXXON MOBIL CORPORATION, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 01cv01357)
Martin J. Weinstein argued the cause for appellants. With
him on the briefs were Robert J. Meyer and Paul W. Wright.
Agnieszka M. Fryszman argued the cause for appellees.
With her on the brief were Michael D. Hausfeld, Marka
Peterson, and Terry Collingsworth.
Before: SENTELLE and KAVANAUGH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SENTELLE.
Dissenting opinion filed by Circuit Judge KAVANAUGH.
2
SENTELLE, Circuit Judge: 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-justiciable 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,
3
assault, battery, arbitrary arrest and detention, false
imprisonment, intentional and negligent infliction of emotional
distress, negligence (in hiring and supervision), and conversion.
Their complaint seeks compensatory and punitive damages,
declaratory relief, attorneys’ fees, and an injunction prohibiting
the defendants from engaging in similar conduct in the future.
The defendants did not answer the complaint; rather, in October
2001, they moved to dismiss the complaint on the grounds that
the plaintiffs’ claims are non-justiciable political questions.
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
4
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., 393 F. Supp. 2d 20 (D.D.C.
2005). First, the district court dismissed all of the plaintiffs’
claims under the Alien Tort Statute and the Torture Victim
Protection Act for failure to state a claim and for lack of subject
matter jurisdiction. Id. at 24-28. These rulings are not
challenged on appeal. Second, the district court dismissed all
remaining claims against defendant PT Arun LNG Company, an
entity that was 55% owned by the Indonesian government. Id.
at 28. The court held that allowing litigation against this
corporation would “create a significant risk of interfering in
Indonesian affairs.” Id. This ruling also is not challenged on
appeal. Third, the district court denied Exxon’s motion to
dismiss the common law tort claims, holding that these claims
did not present a non-justiciable political question. Id. at 29.
However, the court emphasized that even though these claims
were not dismissed, the parties must “tread cautiously” and
conduct discovery “in such a manner so as to avoid intrusion
into Indonesian sovereignty.” Id. To that end, the district court
5
stated that it would exercise “firm control over any discovery
conducted by plaintiffs.” Id. The court concluded by noting:
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, 523 U.S. 83, 94-95 (1998) (“The requirement
that jurisdiction be established as a threshold matter ‘spring[s]
from the nature and limits of the judicial power of the United
States’ and is ‘inflexible and without exception.’”) (quoting
Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)).
We hold that Exxon’s appeal does not fall within the narrow
“collateral order” doctrine, and thus it must be dismissed for
want of jurisdiction.
6
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.”1 28 U.S.C. § 1291. In general, a “final
decision” is a district court order that “ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945).
However, the Supreme Court has held that the phrase “final
decision” also encompasses a “small class” of district court
orders that do not necessarily conclude the litigation, but do
“finally determine claims of right separable from, and collateral
to, rights asserted in the action.” Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949). Such orders are “too
important to be denied review and too independent of the cause
itself to require that appellate consideration be deferred until the
whole case is adjudicated.” Id. Courts have subsequently
identified three requirements for invocation of the “collateral
order doctrine.” In order to be immediately appealable, the
order must: (1) “conclusively determine the disputed question”;
1
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.”
7
(2) “resolve an important issue completely separate from the
merits of the action”; and (3) “be effectively unreviewable on
appeal from a final judgment.” Coopers & Lybrand v. Livesay,
437 U.S. 463, 468 (1978). See also United States v. Philip
Morris, Inc., 314 F.3d 612, 617 (D.C. Cir. 2003).
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, 126 S.
Ct. 952, 958 (2006). Moreover, the Court has expressly stated
that:
[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., 511 U.S. 863, 868
(1994) (emphasis added). Clarity is also an important
consideration in collateral order cases: “the issue of
appealability under § 1291 is to be determined for the entire
category to which a claim belongs, without regard to the chance
that the litigation at hand might be speeded, or a ‘particular
injustic[e]’ averted . . . by a prompt appellate court decision.”
Id. (internal citations omitted). The Court summarized its
approach to the collateral order doctrine by noting that “we have
meant what we said; although the Court has been asked many
times to expand the ‘small class’ of collaterally appealable
orders, we have instead kept it narrow and selective in its
membership.” Will, 126 S. Ct. at 958.
8
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., 393 F.
Supp. 2d at 29. Nothing in the court’s opinion suggests that its
determinations were tentative or subject to revision. The
political question issue is also “an important issue completely
separate from the merits” of the plaintiffs’ tort claims. In
Mitchell v. Forsyth, 472 U.S. 511, 527-28 (1985), the Supreme
Court held that the defendant’s claim of qualified immunity was
“separate from the merits” of the plaintiff’s suit for unlawful
wiretapping. The Court noted that it could resolve the qualified
immunity issue without considering “the correctness of the
plaintiff’s version of the facts, nor even determin[ing] whether
the plaintiff’s allegations actually state a claim.” Id. at 528. The
instant case is no different; the political question issue can be
resolved without any consideration of the merits of the
plaintiffs’ common law tort claims.
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 judgment.”
Coopers & Lybrand, 437 U.S. at 468. An order is “effectively
unreviewable” after final judgment if it involves “an asserted
right the legal and practical value of which would be destroyed
if it were not vindicated before trial.” Midland Asphalt Corp v.
United States, 489 U.S. 794, 798 (1989) (quoting United States
v. MacDonald, 435 U.S. 850, 860 (1978)). Many of the cases in
9
which courts have found this requirement to be satisfied have
involved a district court’s denial of a claim of immunity or
double jeopardy. Such cases satisfy the third requirement of the
collateral order doctrine because they involve the rejection of a
defense that would have allowed the defendant to avoid trial
altogether. More specifically, the doctrines of qualified
immunity and absolute immunity do not just protect covered
individuals from judgments; they also provide protection from
“the risks of trial – distraction of officials from their
governmental duties, inhibition of discretionary action, and
deterrence of able people from public service.” Mitchell, 472
U.S. at 526 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 816
(1982)) (qualified immunity). See also Nixon v. Fitzgerald, 457
U.S. 731, 742 (1982) (absolute immunity); United States v.
Rostenkowski, 59 F.3d 1291, 1297 (D.C. Cir. 1995) (Speech and
Debate Clause immunity and separation of powers immunity).
Similarly, the Supreme Court has held that a district court’s
denial of a claim of state sovereign immunity is immediately
appealable because the Eleventh Amendment grants non-
consenting states a right to be free from trial: “The very object
and purpose of the 11th Amendment were to prevent the
indignity of subjecting a State to the coercive process of judicial
tribunals at the instance of private parties.” P.R. Aqueduct &
Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-47
(1993) (quoting In re Ayers, 123 U.S. 443, 505 (1887)). Courts
have also allowed immediate appeals from denials of double
jeopardy claims because the Double Jeopardy Clause grants
defendants a right to be free from trial if they have already been
tried for the same offense. See Abney v. United States, 431 U.S.
651, 660-61 (1977) (noting that the Double Jeopardy Clause
protects defendants against “the personal strain, public
embarrassment, and expense of a criminal trial more than once
for the same offense”).
10
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, 126 S. Ct. at 958. It would allow immediate appeal
from all district court orders regarding personal jurisdiction,
statutes of limitation, claim preclusion, the right to a speedy
trial, and many other types of motions. Id. See also Digital
Equip. Corp., 511 U.S. at 873 (noting that “virtually every right
that could be enforced appropriately by pretrial dismissal might
loosely be described as conferring a ‘right not to stand trial’”).
Thus, the Supreme Court has also required that the “interest in
avoiding trial” must be buttressed by “some particular value of
a high order,” such as “honoring the separation of powers,
preserving the efficiency of government and the initiative of its
officials, respecting a State’s dignitary interests, [or] mitigating
the government’s advantage over the individual.” Will, 126 S.
Ct. at 959.
Here, Exxon has not established that the political question
doctrine confers a “right not to stand trial” that can justify an
immediate appeal. Exxon asserts that interlocutory review of
the district court’s political question holding is necessary to
protect the executive branch from judicial intrusion into
sensitive foreign policy matters; it argues that any such intrusion
will be effectively unreviewable on appeal from final judgment.
In Will, the Supreme Court did identify “honoring the separation
of powers” as a value that could support a party’s interest in
avoiding trial. Id. However, when the Court mentioned the
separation of powers as a value that supported the “right to
avoid the burdens of trial,” it only did so while discussing cases
involving immunity. See id. (quoting Nixon, 457 U.S. at 743,
749). As explained above, claims of immunity have long been
held to fall within the collateral order doctrine. Thus, although
11
Will did refer to the separation of powers as a “value of a high
order,” that case does not support the broad principle that all
district court orders that reject separation of powers defenses are
immediately appealable under the collateral order doctrine.
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, 169 F.3d 763, 764-66 (D.C. Cir. 1999), a
former cabinet official – Henry Cisneros – was indicted for
allegedly providing false information to the FBI during a
background investigation. Cisneros moved to dismiss several
counts of indictment on the grounds that “the separation of
powers doctrine precludes the Judicial Branch from considering
what information would be capable of influencing the President
or the Senate in evaluating prospective cabinet officers.” Id. at
766. The district court denied the motion to dismiss, holding
that the prosecution of Cisneros would not “impermissibly
intrude[] upon the prerogatives of the executive and legislative
branches to nominate and confirm prospective Cabinet
members.” Id. Cisneros immediately appealed the district
court’s decision, but this Court held that it did not have
jurisdiction over the appeal under the collateral order doctrine.
Id. at 767-71. Like Exxon in the instant case, Cisneros argued
that he had a “right not to be tried” because the “very conduct of
the trial itself will violate the separation of powers by causing
the courts to invade the exclusive constitutional province of the
coordinate branches.” Id. at 769. This Court easily rejected
Cisneros’ argument:
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
12
trial will not occur.” Midland Asphalt Corp., 489 U.S. at
801. 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
separation of powers.2 Just so here. Simply invoking a
separation of powers defense does not permit Exxon to pursue
an otherwise impermissible appeal.
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, 218 F.3d 152 (2d Cir. 2000). Both of
these cases are inapposite. In Rostenkowski, the defendant – a
former Congressman – was indicted for misappropriation of
congressional funds, and as a defense to his prosecution, he
argued that he was protected by Speech and Debate Clause
immunity and by general separation of powers immunity.
2
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, 412 F.3d 190, 193 (D.C. Cir. 2005) (quoting
Baker v. Carr, 369 U.S. 186, 210 (1962)).
13
Rostenkowski, 59 F.3d at 1294-97. The district court denied his
claims of immunity, and Rostenkowski sought immediate
appeal. This Court held that it had jurisdiction over the appeal
under the collateral order doctrine. Id. at 1297. However, as
discussed above, courts have long held that parties may
immediately appeal from the denial of immunity claims, given
that immunity confers a right to be free from the burden of
litigation. Rostenkowski is simply a case that turns on the
interlocutory appealability of immunity determinations; it does
not support the broad principle that all political question
determinations are immediately appealable. Exxon further
argues that in Rostenkowski, this Court addressed the merits of
a political question issue regarding the Rulemaking Clause, even
though the district court denied Rostenkowski’s motion to
dismiss on these grounds. See id. at 1304-12. However, this
Court did not in any way address the interaction between the
collateral order doctrine and the political question doctrine. It
is a well-established principle of interpretation that courts are
“not bound by a prior exercise of jurisdiction in a case where it
was not questioned and it was passed sub silentio.” United
States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952).
See also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 119 (1984); Hagans v. Lavine, 415 U.S. 528, 533 n.5 (1974).
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. 218 F.3d at 159. The case does mention the
political question doctrine, but only by noting that the district
court’s stay order was based upon political question concerns.
Id. The only issue on appeal in 767 Third Avenue Associates
was whether it was proper for the district court to grant the stay.
The case does not address whether a denial of a motion to
14
dismiss based on political question grounds falls within the
collateral order doctrine.
Finally, Exxon also argues that the political question issue
will be effectively unreviewable 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
and its officers to fines, imprisonment, and loss of business. See
Appellant’s Br. 22-23. However, in its discovery order of
May 3, 2006, the district court stated that Exxon would be
required to produce documents located in Indonesia only “after
any necessary authorization” from the Indonesian government.
In other words, during discovery Exxon will not be compelled
to produce any documents against the wishes of the government
of Indonesia. Thus, Exxon’s concerns about being subjected to
penalties for unauthorized disclosures are baseless.
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, 126 S. Ct. at 957-58. We hold that
the denial of a motion to dismiss based upon political question
grounds is not an immediately appealable collateral order. Thus,
Exxon’s appeal must be dismissed for want of appellate
jurisdiction.
15
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, 490 U.S. 296, 308 (1989) (quoting Roche v.
Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943)). Courts will
issue the writ only if the petitioners’ right to relief is “clear and
indisputable” and if the petitioners “lack adequate alternative
means to obtain the relief they seek.” Id. at 309. See also In re
Sealed Case, 141 F.3d 337, 339 (D.C. Cir. 1998). This Court
has emphasized that “[m]andamus is an extraordinary remedy
‘reserved for really extraordinary cases.’” In re Bituminous
Coal Operators Ass’n, 949 F.2d 1165, 1167 (D.C. Cir. 1991)
(quoting Ex parte Fahey, 332 U.S. 258, 260 (1947)). Moreover,
it is well settled that mandamus “is not to be used as a substitute
for appeal . . . even though hardship may result from delay and
perhaps unnecessary trial.” Schlagenhauf v. Holder, 379 U.S.
104, 110 (1964) (internal citations omitted). See also In re GTE
Serv. Corp., 762 F.2d 1024, 1026-27 (D.C. Cir. 1985). In order
to grant Exxon’s petition for mandamus, we would have to hold
that the district court “clearly and indisputabl[y]” exceeded its
jurisdiction by refusing to dismiss this case under the political
question doctrine. We cannot so hold.
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., 393 F.
Supp. 2d at 28. Likewise, the district court has greatly curtailed
16
discovery in this case; for example, Exxon will not be required
to produce documents from its Indonesian operations unless it
receives all “necessary authorizations” from the Indonesian
government. The district court imposed this limitation to ensure
that there would be no discovery of documents that the
Indonesian government deems classified or confidential.
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, 542 U.S. 692,
733 n.21 (2004) (suggesting that when the State Department
files a statement of interest “there is a strong argument that
federal courts should give serious weight to the Executive
17
Branch’s view of the case’s impact on foreign policy”). Of
course, if we have misinterpreted this letter, or if the State
Department has additional concerns about this litigation, it is
free to file further letters or briefs with the district court
expressing its views. Cf. Republic of Austria v. Altmann, 541
U.S. 677, 701 (2004) (noting that “nothing in our holding
prevents the State Department from filing statements of interest
suggesting that courts decline to exercise jurisdiction in
particular cases implicating foreign sovereign immunity”). But
given the letter before us in the record, we cannot say it is
“indisputable” that the district court erroneously failed to
dismiss the plaintiffs’ claims under the political question
doctrine, no matter what level of deference is owed to the State
Department’s letter.
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, 456 F.3d 1069 (9th Cir. 2006), the Ninth Circuit
held that the political question doctrine does not bar litigation of
a tort suit by Papua New Guinean villagers against an
international mining company. In Sarei, the plaintiffs alleged
that the mining company used the Papau New Guinean military
to quell an uprising that threatened the mines; many civilians
were killed or injured during this operation. Id. at 1075. The
district court dismissed the case on political question grounds,
but the Ninth Circuit reversed, holding that the suit did not
present a non-justiciable political question. Id. at 1079-84. The
court emphasized that this was simply a tort suit – which is
constitutionally committed to the judiciary – and that there was
no reason to suspect that the suit would “infring[e] on the
prerogatives” of the executive branch. Id. at 1079-82. In Sarei
(like the instant case), the State Department filed a letter
expressing concerns about the case, but the Ninth Circuit noted
that this letter was “guarded,” and held that “we are confident
18
that proceeding does not express any disrespect for the
executive, even if it would prefer that the suit disappear.” Id. at
1082-83.
Similarly, in Linder v. Portocarrero, 963 F.2d 332 (11th
Cir. 1992), the plaintiffs brought common law tort claims
against several Nicaraguan individuals and groups, alleging that
these defendants tortured and killed one of their relatives during
the Nicaraguan civil war. The Eleventh Circuit held that the
claims against “military and political” groups must be
dismissed, but that the remaining claims – against private
individuals – were not barred by the political question doctrine.
Id. at 337. See also Ungar v. Palestine Liberation Org., 402
F.3d 274, 279-82 (1st Cir. 2005) (holding that a tort suit by
victims of terrorism against the PLO does not present a non-
justiciable political question).
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 (i.e.,
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,
318 U.S. 578, 586-87 (1943), holds that mandamus is
appropriate for cases that involve “the dignity and rights of a
friendly sovereign state, claims against which are normally
presented and settled in the course of the conduct of foreign
affairs by the President and by the Department of State.”
However, that case is inapposite for several reasons. First, in
Republic of Peru, the district court had refused to dismiss an in
19
rem claim against a Peruvian vessel even though the State
Department and the government of Peru had reached a
negotiated solution to this dispute. Id. at 799. The Supreme
Court noted that:
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. Thus, in Republic of Peru, continued litigation might
have upset a negotiated settlement between the State Department
and a foreign sovereign. In the instant case, however, there has
been no settlement of the plaintiffs’ claims by the political
branches that would be disrupted by litigation in the district
court. Moreover, the Supreme Court stated:
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 (emphasis added). Republic of Peru was an in rem
adjudication regarding a ship that was owned by a foreign
sovereign. In contrast, the instant case involves only tort claims
by private plaintiffs against a private corporation; the
government of Indonesia is not a party to the suit, and none of
its property would be affected by the district court’s adjudication
of this case. Thus, the Republic of Peru case provides little, if
any, support for Exxon’s contention that it is entitled to a writ of
mandamus.
20
Exxon also relies upon In re Austrian & German Holocaust
Litigation, 250 F.3d 156 (2d Cir. 2001), for the proposition that
mandamus is appropriate “in a matter bearing on United States
foreign policy” that presents “separation of powers concerns.”
This case also does little to support Exxon’s position. In the
Holocaust Litigation case, the district court had dismissed
several Holocaust-related claims against German and Austrian
defendants; however, the dismissal was contingent upon further
actions being taken that would allow those claims to proceed in
an international settlement process. Id. at 163-65. The Second
Circuit issued a writ of mandamus and vacated two portions of
the district court’s order. First, the court held that:
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.
21
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 above, we
are not able to say that Exxon has “clearly and indisputably”
established a right to the relief it seeks. Accordingly, Exxon’s
petition for a writ of mandamus is denied.
22
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.
KAVANAUGH, Circuit Judge, 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., 963 F. Supp. 880, 883-84 (C.D. Cal.
1997) (considered to be first such case). The complaints often
allege corporate complicity in various human rights violations
committed by foreign government officials against foreign
citizens in foreign countries (some cases allege direct corporate
wrongdoing not involving foreign government officials).
Particularly because many of these lawsuits directly or indirectly
target actions of foreign government officials, they frequently
raise sensitive foreign policy issues for the United States.
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 –
2
including Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21
(2004) – and decisions of this Court, the federal courts give
deference to reasonable explanations by the Executive Branch
that a civil lawsuit would adversely affect the foreign relations
of the United States, and the courts dismiss such cases as
non-justiciable political questions. Given those precedents and
the State Department’s reasonable explanation of how this
litigation would harm U.S. interests, we should grant the petition
for a writ of mandamus and order dismissal of plaintiffs’
complaint.
I
Exxon Mobil Corporation’s Indonesian subsidiary
maintains a large natural gas facility in the Aceh Province of
Indonesia. The Province has endured violence as a result of
internal tensions between separatists in that region and the
Government of Indonesia. To protect its Indonesian natural gas
operations, Exxon entered into a contract with Indonesia’s
state-owned oil and gas company in which members of the
Indonesian military would work as security personnel at
Exxon’s facility.
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 Arun LNG
Company, a natural gas entity that Exxon and the Indonesian
government jointly own.
3
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
4
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 “[t]his 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 impact on U.S. diplomatic objectives
throughout the region, on U.S. businesses, and on the
international economy.
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
5
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.,
393 F. Supp. 2d 20, 22 (D.D.C. 2005) (quoting State
Department’s 2002 Statement of Interest). The District Court
reasoned that “determining whether defendants engaged in joint
action with the Indonesian military necessarily would require
judicial inquiry into precisely what the two parties agreed to do”
and “such an inquiry cuts too close to adjudicating the actions of
the Indonesian government.” Id. at 27.
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.
6
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, 468 U.S. 222, 242 (1984) (“Matters relating to
the conduct of foreign relations . . . are so exclusively entrusted
to the political branches of government as to be largely immune
from judicial inquiry or interference.”) (internal quotation
omitted); Haig v. Agee, 453 U.S. 280, 292 (1981) (“Matters
intimately related to foreign policy and national security are
rarely proper subjects for judicial intervention.”); Chicago & S.
Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948)
(“[T]he very nature of executive decisions as to foreign policy
is political, not judicial. Such decisions are wholly confided by
our Constitution to the political departments of the government,
Executive and Legislative. . . . They are decisions of a kind for
which the Judiciary has neither aptitude, facilities nor
responsibility and have long been held to belong in the domain
of political power not subject to judicial intrusion or inquiry.”);
Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918) (“The
conduct of the foreign relations of our Government is committed
by the Constitution to the Executive and Legislative – ‘the
political’ – Departments of the Government, and the propriety
of what may be done in the exercise of this political power is not
subject to judicial inquiry or decision.”); see also Dep’t of Navy
v. Egan, 484 U.S. 518, 529-30 (1988) (“As to these areas of Art.
II duties the courts have traditionally shown the utmost
deference to Presidential responsibilities.”) (internal quotation
omitted); United States v. Curtiss-Wright Exp. Corp., 299 U.S.
304, 319 (1936) (“The President is the sole organ of the nation
7
in its external relations, and its sole representative with foreign
nations.”) (internal quotation omitted).
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,
369 U.S. 186, 211 (1962) (Regarding foreign policy issues:
“Not only does resolution of such issues frequently turn on
standards that defy judicial application, or involve the exercise
of a discretion demonstrably committed to the executive or
legislature; but many such questions uniquely demand
single-voiced statement of the Government’s views.”); Bancoult
v. McNamara, 445 F.3d 427, 435 (D.C. Cir. 2006) (describing
“topics that serve as the quintessential sources of political
questions: national security and foreign relations”); Hwang
Geum Joo v. Japan, 413 F.3d 45, 52 (D.C. Cir. 2005) (“The
Executive’s judgment that adjudication by a domestic court
would be inimical to the foreign policy interests of the United
States is compelling and renders this case nonjusticiable under
the political question doctrine.”); Tel-Oren v. Libyan Arab
Republic, 726 F.2d 774, 803 (D.C. Cir. 1984) (Bork, J.,
concurring) (“Questions touching on the foreign relations of the
United States make up what is likely the largest class of
questions to which the political question doctrine has been
applied.”).
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, 542 U.S. 692, 733
n.21 (2004) (regarding suits involving private parties: “[T]here
8
is a strong argument that federal courts should give serious
weight to the Executive Branch’s view of the case’s impact on
foreign policy.”); Republic of Austria v. Altmann, 541 U.S. 677,
702 (2004) (“[S]hould the State Department choose to express
its opinion on the implications of exercising jurisdiction over
particular petitioners in connection with their alleged conduct,
that opinion might well be entitled to deference as the
considered judgment of the Executive on a particular question
of foreign policy.”) (emphasis in original); Crosby v. Nat’l
Foreign Trade Council, 530 U.S. 363, 366, 386 (2000)
(regarding state legislation regulating foreign commerce with
Burma: “[R]epeated representations by the Executive Branch
supported by formal diplomatic protests and concrete disputes
are more than sufficient to demonstrate that the state Act stands
in the way of Congress’s diplomatic objectives.”); cf. Am. Ins.
Ass’n v. Garamendi, 539 U.S. 396, 424 (2003) (citing letters
from State Department explaining harm to foreign policy caused
by state law); Regan, 468 U.S. at 243 (referring to “the
traditional deference to executive judgment” in foreign policy
matters); Ex parte Republic of Peru, 318 U.S. 578, 588 (1943)
(courts should not exercise their jurisdiction “as to embarrass the
executive arm of the government in conducting foreign
relations”).
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, 318 U.S. at 588;
Hwang Geum Joo, 413 F.3d at 48; Whiteman v. Dorotheum
GmbH & Co. KG, 431 F.3d 57, 59-60 (2d Cir. 2005) (citing
Altmann, 541 U.S. at 702, and Sosa footnote 21 and deferring to
State Department Statement of Interest in ordering dismissal of
suit against Republic of Austria). Beginning in 1980, the
category of cases potentially raising foreign policy concerns
expanded as a result of the Second Circuit’s decision in
9
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). That case
held that, under the Alien Tort Statute, foreign citizens can sue
foreign government officials for international law violations
committed in foreign countries. See id. at 878, 887; cf.
Tel-Oren, 726 F.2d at 775, 792 (Edwards, J., concurring); id. at
799, 812-16 (Bork, J., concurring); id. at 823 (Robb, J.,
concurring).
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., 403 F. Supp. 2d 1019, 1032 (W.D. Wash.
2005) (“This case must also be dismissed because it interferes
with the foreign policy of the United States of America. . . . For
this court to preclude sales of Caterpillar products to Israel
would be to make a foreign policy decision and to impinge
directly upon the prerogatives of the executive branch of
government.”); Mujica v. Occidental Petroleum Corp., 381 F.
Supp. 2d 1164, 1194 (C.D. Cal. 2005) (“[T]he State Department
has filed a Statement of Interest outlining several areas of
foreign policy that would be negatively impacted by proceeding
with the instant case. . . . [P]roceeding with the litigation would
indicate a ‘lack of respect’ for the Executive’s preferred
10
approach of handling the Santo Domingo bombing and relations
with Colombia in general.”); In re Nazi Era Cases Against
German Defendants Litig., 334 F. Supp. 2d 690, 695-96 (D.N.J.
2004) (“[T]he political question doctrine counsels the Court to
dismiss this action. . . . If this Court adjudicated the Complaint,
it would do so against the recommendation of the Executive
Branch.”); id. at 695 (“[A]llowing private litigation of
war-related claims would express a lack of respect for the
executive branch.”) (quoting Iwanowa v. Ford Motor Co., 67 F.
Supp. 2d 424, 486 (D.N.J. 1999)); Iwanowa, 67 F. Supp. 2d at
486 (“The executive branch has always taken the position that
claims arising out of World War II must be resolved through
government-to-government negotiations. Thus, allowing private
litigation of war-related claims would express a lack of respect
for the executive branch.”).
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, 542 U.S. at 733 n.21. The Court stated:
“[T]here is a strong argument that federal courts should give
serious weight to the Executive Branch’s view of the case’s
impact on foreign policy.” Id. (citing Altmann, 541 U.S. at 701-
02); cf. Garamendi, 539 U.S. at 415-16 (“The executive
11
agreements at issue here do differ in one respect from those just
mentioned insofar as they address claims associated with
formerly belligerent states, but against corporations, not the
foreign governments. But the distinction does not matter.
Historically, wartime claims against even nominally private
entities have become issues in international diplomacy . . . .”);
Crosby, 530 U.S. at 386 (Court “acknowledged that the nuances
of the foreign policy of the United States . . . are much more the
province of the Executive Branch and Congress than of this
Court” in litigation challenging state legislation regulating
private corporations engaged in foreign commerce) (internal
quotation omitted).
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, 542 U.S. at 733 n.21. Of course, serious weight does
not mean conclusive weight. Judicial deference to the Executive
Branch regarding the foreign policy implications of a civil
lawsuit does not mean judicial abdication. It is not enough,
therefore, for the Executive Branch merely to assert harm;
rather, the harm must be explained – and explained reasonably.
In other words, as in other cases involving Executive Branch
statements about the adverse impact on U.S. foreign policy
interests, the fundamental question for the Judiciary is whether
the Executive Branch has reasonably explained that the litigation
would adversely affect the foreign policy interests of the United
States. Cf. Hwang Geum Joo, 413 F.3d at 48, 52.
This Court’s decision in Hwang Geum Joo exemplifies
proper application of those traditional justiciability principles.
In that case, 15 women from China, Taiwan, South Korea, and
the Philippines sued Japan under the Alien Tort Statute for
international law violations. Id. at 46. The plaintiffs alleged
that Japanese soldiers had subjected them to torture before and
12
during World War II. Id. The plaintiffs and the Japanese
government disagreed about whether peace treaties between
Japan and plaintiffs’ countries of origin extinguished war claims
made against Japan by citizens of the plaintiffs’ countries. Id.
at 48. The State Department submitted a Statement of Interest
stating “that judicial intrusion into the relations between Japan
and other foreign governments would impinge upon the ability
of the President to conduct the foreign relations of the United
States.” Id. In deciding the case, this Court “defer[red] to the
judgment of the Executive Branch” as set forth in the
Department’s “thorough and persuasive Statement of Interest”
and concluded that “our Constitution does not vest the authority
to resolve that dispute in the courts.” Id.
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, 139 F.3d 247, 252 & n.2 (D.C.
Cir. 1998). Such questions, we said, include State Department
determinations about the extent to which U.S. interests are
affected by “the sensitive diplomatic considerations involved”
in certain legal claims. Id. at 252 (internal quotation omitted).
In addressing the related “act of state” doctrine, this Court
similarly has recognized “the value of obtaining views of the
Executive Branch in matters relating to the application of the act
of state doctrine and giving appropriate weight to those views.”
Millen Indus., Inc. v. Coordination Council, 855 F.2d 879, 881
(D.C. Cir. 1988).
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
13
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 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 Department explained that Indonesia would view
this lawsuit as an intrusion on its sovereignty. The Department
stated that “[t]his 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 objectives; negative effects on
foreign investment, which would have negative impacts on
stability and economic conditions; and decreased opportunities
for U.S. business abroad. Along with its 2002 statement, the
State Department submitted to the District Court a letter from
the Indonesian Ambassador that stated, “As a matter of
principle, we cannot accept the extra territorial jurisdiction of a
United States Court over an allegation against an Indonesian
14
government institution, . . . the Indonesian military, for
operations taking place in Indonesia.” D.A. 188. Then in July
2005, the State Department provided a new letter stating that the
concerns set forth in its initial letter “remain valid today.” D.A.
244. Enclosed with that letter was another letter from the
Indonesian government, reiterating the concerns Indonesia first
expressed in 2002. Nothing in the record since 2005 purports to
withdraw the concerns raised by either the State Department or
the Government of Indonesia.
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.,
393 F. Supp. 2d at 22 (quoting State Department’s 2002
Statement of Interest). The District Court also highlighted the
15
Supreme Court’s warning in Sosa that courts should be
“‘particularly wary of impinging on the discretion of the
Legislative and Executive branches in managing foreign affairs,’
particularly when the Executive has expressed its views about
the litigation.” Id. at 23 (quoting 542 U.S. at 727) (internal
citation omitted). And the District Court proceeded to dismiss
plaintiffs’ federal-law claims in part because “determining
whether defendants engaged in joint action with the Indonesian
military necessarily would require judicial inquiry into precisely
what the two parties agreed to do” and “such an inquiry cuts too
close to adjudicating the actions of the Indonesian government.”
Id. at 27.
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-law claims, just as
the District Court would have done had it entertained plaintiffs’
federal-law claims. Moreover, nothing in the State Department
letter distinguished federal and state law claims in assessing the
harm to U.S. foreign policy interests – indicating that the state-
law claims pose just as much a threat to U.S. foreign policy
interests as the federal-law claims. In sum, I respectfully submit
that the District Court should have dismissed the state-law
claims based on the same State Department concerns that
supported the District Court’s dismissal of the federal-law
claims.
16
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, 539
U.S. at 420. Although we need not resolve the issue here, the
state-law tort claims are likely preempted as a result of the State
Department’s specific statement of harm to foreign policy. See,
e.g., id. at 413, 424 (referencing Executive Branch statements
regarding conflict caused by state law and stating: “There is, of
course, no question that at some point an exercise of state power
that touches on foreign relations must yield to the National
Government’s policy, given the concern for uniformity in this
country’s dealings with foreign nations that animated the
Constitution’s allocation of the foreign relations power to the
National Government in the first place.”) (internal quotation
omitted); cf. Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861,
886 (2000) (holding that federal statute preempted state-law tort
action); see generally Jack Goldsmith, Statutory Foreign Affairs
Preemption, 2000 SUP. CT. REV. 175, 203-05, 213 (2000)
(“[C]ourts should preempt state law only when the justification
for preemption is fairly traceable to the foreign policy choices
not of the federal courts, but rather of the federal political
branches.”).
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* and concludes
*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
17
that this footnote undermines the 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.” See Maj. Op. at 16-17;
D.A. 182. I respectfully think the majority opinion misreads the
State Department footnote – and as a result gives unduly short
shrift to the State Department’s Statement of Interest.
In the same way that Executive agencies often do when
justifying decisions necessarily based on predictive judgments,
footnote 1 simply sets forth the factors on which the State
Department based its judgment that the litigation itself would
harm U.S. foreign policy interests. Footnote 1 does not purport
to lay out a roadmap for the District Court to alleviate the State
Department’s concerns as the litigation unfolds – for example,
by fashioning the scope of the litigation in a certain way. To be
sure, the Department said its ultimate judgment regarding the
effect of this suit was “predictive” and “contingent” on several
factors. But that truism is not a hook for the majority opinion to
override the Department’s bottom-line conclusion. After all,
judgments of this kind are always predictive in the sense that the
State Department can never know in advance precisely how
future events will unfold and affect U.S. foreign policy.
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.
18
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 16-17.
19
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 17. 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, 456 F.3d 1069 (9th Cir. 2006). (In
Sarei, residents of Papua New Guinea alleged corporate
complicity in human rights violations committed by the
Government of Papua New Guinea. Id. at 1073-75.)
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 private entities. See id. at 1081. But
the Ninth Circuit refused to defer to the particular State
Department statement in that case. Id. at 1082-83. For purposes
of our analysis, two points are important about Sarei: First, the
State Department’s Statement of Interest in Sarei was
“guarded,” so the Ninth Circuit’s opinion is not particularly
instructive to our decision here, in which the State Department’s
statement is strongly worded and clearly identifies a negative
effect on, among other things, U.S. prosecution of an ongoing
war. Id. at 1082. Second, in any event, I would not follow the
Ninth Circuit’s opinion in Sarei because I respectfully believe
the decision is incorrect for reasons well stated by Judge
Morrow in her thorough and persuasive District Court analysis
in that case:
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
20
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, 221 F. Supp. 2d 1116, 1198-99 (C.D.
Cal. 2002).
III
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., 426 U.S. 394, 402 (1976)
(internal quotation omitted). A court will issue the writ “only
upon a showing that the petitioner’s right is ‘clear and
indisputable,’ and that ‘no other adequate means to attain the
relief’ exist.” In re Sealed Case, 141 F.3d 337, 339 (D.C. Cir.
1998) (quoting Gulfstream Aerospace Corp. v. Mayacamas
Corp., 485 U.S. 271, 289 (1988) and Allied Chem. Corp. v.
Daiflon, Inc., 449 U.S. 33, 35 (1980)) (internal citation omitted).
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
21
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.” 318 U.S. 578, 586 (1943).
In lawsuits involving the “dignity and rights of a friendly
sovereign state,” the Court noted, “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.
The Supreme Court recently reiterated the principles of Ex
parte Peru, indicating that mandamus is warranted when a
lawsuit “would threaten the separation of powers by
‘embarrass[ing] the executive arm of the Government.’”
Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S.
367, 380-81 (2004) (quoting Ex parte Peru, 318 U.S. at 588).
The Cheney case re-affirmed that mandamus is proper “to
prevent a lower court from interfering with a coequal branch’s
ability to discharge its constitutional responsibilities.” Id. at
382; see also In re Austrian & German Holocaust Litig., 250
F.3d 156, 163-65 (2d Cir. 2001) (in issuing writ of mandamus,
court relies on political question doctrine and states that courts
should not intrude on foreign policy prerogatives of political
branches).
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 18-19. I believe the majority
opinion’s attempt to distinguish Ex parte Peru is misplaced for
two reasons – one factual and one legal.
22
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 GOI.”). 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, 542 U.S. 692, 733 n.21 (2004); Am.
Ins. Ass’n v. Garamendi, 539 U.S. 396, 424 (2003). Rather, this
suit alleges wrongdoing by members of a foreign military who
were supplied by a foreign state-owned entity to provide
security at a facility offering vital infrastructural services for a
foreign nation.
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 justiciability) 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
23
States. See 318 U.S. at 586-87 (“The case involves the dignity
and rights of a friendly sovereign state, claims against which are
normally presented and settled in the course of the conduct of
foreign affairs by the President and by the Department of
State.”). There is no logical or principled basis for granting
mandamus in some cases that severely affect the foreign policy
interests of the United States, but not in other cases, just because
of the named defendants. Cf. Sosa, 542 U.S. at 733 n.21. The
rule of Ex parte Peru is straightforward: If the District Court
incorrectly green-lights a lawsuit that would adversely affect the
foreign policy interests of the United States, mandamus is
warranted.
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 15-16. 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, 318 U.S. at 587 (“[I]t 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.”); In re Papandreou, 139 F.3d 247, 251
(D.C. Cir. 1998) (granting mandamus in case involving foreign
sovereign immunity: “[S]overeign immunity is an immunity
from trial and the attendant burdens of litigation, and not just a
defense to liability on the merits.”) (internal quotation omitted).
The same rationale applies here.
24
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 Nacional de Cuba, 406 U.S. 759, 768 (1972) (plurality
opinion of Rehnquist, J.) (suit against foreign government
corporation may proceed because Executive Branch “has
advised us” that suit would not “frustrate the conduct of this
country’s foreign relations”). On the other hand, I assume the
majority would agree that the District Court should dismiss the
case if the State Department reasonably and unambiguously
states that litigation of the state-law claims would affect U.S.
foreign policy interests. See Maj. Op. at 16-17. Indeed, even
plaintiffs’ counsel appeared to agree at oral argument that
dismissal by the District Court (and, if not, then mandamus by
this Court) would be warranted if the State Department
reasonably explained to the District Court that the remainder of
this case would negatively affect U.S. efforts in the war against
al Qaeda. See Tr. of Oral Arg. at 23-24. Therefore, I expect that
the District Court will obtain the State Department’s specific
views on the remaining state-law claims in the litigation and
proceed accordingly.
***
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
25
petition for a writ of mandamus and order dismissal of the
complaint as a non-justiciable political question. I respectfully
dissent.