Doe, John v. Exxon Mobil Corp

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”).

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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.

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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.