Appellate Jurisdiction Over Political Questions
The D.C. Circuit last week rendered an important ruling in an ATS case regarding appellate jurisdiction over political questions. In Doe v. Exxon, the Court ruled that it lacked jurisdiction to hear the appeal.
The case sounds similar to the Unocal-Burma case with allegations that Exxon retained government soldiers as guards for their natural gas facility and these security forces acted under Exxon’s direction and control. Plaintiffs sought relief under the ATS, the TVPA, and various common law tort claims, including wrongful death, false imprisonment, negligence, and conversion. The district court dismissed all ATS and TVPA claims, as well as all claims against the Indonesian government-owned joint venturer, PT Arun LNG Company. But it denied the motion to dismiss the common law tort claims against Exxon, holding that these claims did not present non-justiciable political questions.
Here is an excerpt of the D.C. Circuit court’s opinion:
In order to be immediately appealable, the order must: (1) “conclusively determine the disputed question”; (2) “resolve an important issue completely separate from the merits of the action”; and (3) “be effectively unreviewable on appeal from a final judgment.”… At the outset, we note that the first two requirements for invocation of the collateral order doctrine are satisfied in this case…. Thus, we turn to the third requirement of the collateral order doctrine…. 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.”… 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…. 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…. 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.”
Judge Kavanaugh dissented, and argued that
“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…. The complaints often allege corporate complicity in various human rights violations committed by foreign government officials against foreign citizens in foreign countries …. 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.
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 [State Department’s] Statement of Interest indicates may have serious implications for the future of the peace agreement that has been reached, and thus for the foreign policy objectives the executive branch has set. It is also the type of judgment that risks placing the court in the position of announcing a view that is contrary to that of a coordinate branch of government, with all the attendant embarrassment that would ensue. The situation is thus quintessentially one that calls for invocation of the political question doctrine as to each of plaintiffs’ causes of action.”
I must say I find myself in sympathy with Judge Kavanaugh. Although this case is limited to state law claims for common law torts, the issues do appear to require a federal court to pass judgment on the conduct of the Indonesian government acting in concert with Exxon. Claims of corporate liability for aiding and abetting a foreign government’s human rights abuses undoubtedly raise sensitive foreign policy issues for the United States and it would appear that those interests could be best protected by allowing for interlocutory appeal of an order dimissing a claim of non-justiciability. If the case goes all the way to the merits before an appeal may proceed on the issue of the political question doctrine, much of the damage to foreign relations will already have been done.