Tuesday, November 13, 2007

Update: Exxon Mobil Corp. v. John Doe I

In June 2001, plaintiffs, eleven Indonesian villagers, sued Exxon Mobil and others under the Alien Tort Statute, the Torture Victim Protection Act, and state tort law in the U.S. District Court for the District of Columbia. The complaint (as amended in January 2006, here) alleged that the defendants hired security forces, comprised exclusively of Indonesian military personnel, to guard a natural gas facility in Aceh. These forces, it is alleged, committed murder, torture, sexual assault, battery, false imprisonment, and other torts. The defendants, allegedly, hired, armed, and controlled these forces despite knowing that the Indonesian military committed human rights abuses in the past. The defendants moved to dismiss the complaint on the basis of the political question doctrine. The district court thereupon requested the views of the United States "as to whether adjudication of this case at this time would impact adversely on the interests of the United States, and, if so, the nature and significance of that impact." In response, the Legal Adviser of the U.S. Department of State submitted a Statement of Interest that concluded: "the Department of State believes 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." The Statement of Interest included a letter from the Indonesian Ambassador to the United States to the U.S. Deputy Secretary of State concerning the litigation. On October 14, 2005, the district court granted the defendants' motion in part and denied it in part. The district court dismissed the Alien Tort Statute and Torture Victim Protection Act claims for failure to state a claim and for lack of subject matter jurisdiction. The court, however, denied the motion insofar as it applied to the plaintiffs' state law tort claims, finding that these claims did not present non-justiciable political questions, as the court could focus discovery and litigation on these claims in a manner that would mitigate the concerns raised by the State Department and the Government of Indonesia. Exxon Mobil filed an interlocutory appeal. On January 12, 2007, a panel of the U.S. Court of Appeals for the D.C. Circuit (Judges Sentelle and Edwards for the majority; Judge Kavanaugh dissenting) found that the it did not have jurisdiction over the appeal and in the alternative, treating the appeal as a writ of mandamus, that the appellants had not established a "clear and indisputable" right to to have the plaintiffs' claims dismissed. On July 20, Exxon Mobil filed a petition for a writ of certiorari. (Brief in opposition here; petitioners' reply here.) The question presented by the petition is:
Where a lawsuit challenges the activities of a foreign government, and the Executive warns that the litigation itself, and not just the effects of a final judgment, would risk a potentially serious adverse impact on serious foreign policy interests of the United States, does the collateral order doctrine permit immediate appeal of a district court's denial of a motion to dismiss under the political question doctrine?
Today, the Supreme Court invited the Solicitor General to file a brief expressing the views of the United States on the petition.