24 Jan 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.
In this arena, has anyone looked at what is the damage to foreign relations? It seems too easy for State to make some declaration on some grounds and the courts are just supposed to roll over. That a foreign state may not be happy with a US court for looking at its conduct is understandable, but is an unhappy alleged human rights violator enough of a reason? Are courts going to squeeze again through this doctrine to basically sidestep situations of universal jurisdiction. What is the proper international role of our courts? No answers but I am terribly troubled by the “free pass” opuor courts appear to be willing to give our companies who can capture the Executive and Congress through campaign contributions etc.
Best,
Ben
Another take on the political question queasiness of US courts. Best, Ben WATADA WATCH: Paul Rockwell reviews ‘sorry record’ of ‘political question’ cases [On Tuesday in the *San Francisco Bay Guardian*, Paul Rockwell reviewed the U.S. judiciary’s “long, sorry record of ignoring the right of American soldiers to due process and the treaty clause and war-power clause in the Constitution.”[1] — Although “[i]n a celebrated case in 1900 (United States v. Paquete Habana), the Supreme Court ruled, ‘International law is part of the law of the United States and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for determination,’ judges protective of the U.S. national security state have long used concept of the “political question” in order to exempt the executive from the rule of law. — As if the rule of law itself were merely a “political question.” — “Taken together,” Rockwell wrote, “the Vietnam War rulings contradict the landmark precedent Marbury v. Madison. In 1803, Chief Justice John Marshall captured the essence of judicial abdication: ‘It cannot be presumed that any clause in the Constitution is intended to be without effect.… Read more »
I must say I have personal qualms about our courts trying matters that occurred overseas, and would generally be outside their jurisdiction.
Of course, the solution to that is legislative.
Lt. Col. Head, presiding at Watada’s court-martial, is already preparing to repeat the follies of the past. At a pretrial hearing Jan. 17, he denied all defense motions to present hard evidence of systematic war crimes in Iraq. He rejected the Nuremberg defense. He also upheld a pivotal government motion “to prevent the defense from presenting any evidence on the illegality of the war.” Like past accomplices, he claimed that Watada’s case is a “political issue” beyond the jurisdiction of the court.
At the risk of going off-topic, the legality of war is not really relevent to Mr. Watada’s case. He was ordered to ship out to Iraq. He has to show that the ship-out order, was, in and of itself, an illegal order.
Even if the war had been illegal, he is shipping out to a country which we occupy and are there on invitation of the recognized government. In light of that, what hope does he have of showing the order to ship out was illegal?
Matthew,
Watada’s arguments I believe are over at http://www.thankyoult.org. I see your point, but I believe Watada’s position is that 1) the war in Iraq is illegal 2) an order to ship out to fight an illegal war is an unlawful order 3) he is under an obligation not to comply with unlawful orders under his oath and the UCMJ. The judge seems to be saying – I can not address 1) as it is a political question, so all I have is the order. I guess that is what we can expect from judges in this arena. Watada is willing to suffer the consequences of his position as he believes he would be engaged in aaggressive war, crimes against humanity and/or war crimes in participating in the War in Iraq and the troop movement is part of that participation.
Best,
Ben
A relevant interview is on NPR which can be downloaded after 3h00 EST today at watada
Best,
Ben