The opinion of the court was delivered by: LOUIS OBERDORFER, Senior District Judge
Pending is defendants' Motion to Dismiss the plaintiffs'
complaint. Defendants seek dismissal on several grounds: (1) lack
of subject matter jurisdiction and failure to state a claim on
plaintiffs' Alien Tort Statute and Torture Victim Protection Act
claims; (2) nonjusticiability; (3) forum non conveniens; (4) lack
of personal jurisdiction over Exxon Mobil Oil Indonesia; and (5)
statute of limitations on John Doe V's claims [docket no.
13].*fn1 For reasons explained below, defendants' motion to
dismiss for failure to state a claim and lack of subject matter
jurisdiction is granted with respect to plaintiffs' Alien Tort
Statute and Torture Victim Protection Act claims. PT Arun LNG
Company, an entity 55% owned by the Indonesian government, is
also dismissed as a party to this suit on justiciability grounds.
The only remaining claims are plaintiffs' state law claims. None
of the defendants' arguments for dismissal of these claims has
Consequently, after entry of the Order accompanying this
Memorandum, the unresolved issues are how to proceed with
discovery and litigation on the state tort claims without
interfering with U.S. foreign policy and Indonesia's sovereignty, and what
basis exists for subject matter jurisdiction over plaintiffs'
remaining state tort claims.
I. Background and Procedural History
This suit was filed in June 2001 by eleven Indonesian
citizens*fn2 against defendants Exxon Mobil Corporation,
Mobil Corporation, Mobil Oil Corporation, and Exxon Mobil Oil
Indonesia Inc. (collectively, "Exxon"), and PT Arun LNG Company
("PT Arun"). Plaintiffs allege that defendants violated the Alien
Tort Statute, the Torture Victim Protection Act ("Torture Act"),
and committed various common-law torts in the course of
protecting and securing defendants' liquid natural gas extraction
pipeline and liquification facility in Arun, Indonesia.
The Alien Tort Statute in its entirety states "[t]he district
courts shall have original jurisdiction of any civil action by an
alien for a tort only, committed in violation of the law of
nations or a treaty of the United States." 28 U.S.C. § 1350. The
Torture Act establishes federal jurisdiction and liability for
"[a]n individual who, under actual or apparent authority, or
color of law, of any foreign nation . . . subjects an individual
to torture . . ." 28 U.S.C. § 1350 note § 2(a)(1)-(2).
Plaintiffs allege that, during an on-going conflict with the
Indonesian government and Achenese rebels, defendants contracted
with a unit of the Indonesian national army to provide security
for the pipeline. Defendants allegedly conditioned payment on
providing security, made decisions about where to build bases,
hired mercenaries to train the security troops, and provided
logistical support. Plaintiffs claim that Exxon and PT Arun are
liable for the alleged actions of the Indonesian soldiers, as an
aider and abettor, a joint action/joint venturer, or as a
proximate cause of the alleged misconduct.
In October 2001 Defendants responded to the Complaint with a
Motion to Dismiss. While that motion was under advisement, in
response to my request on July 29, 2002 the U.S. State Department
filed a Statement of Interest, and reiterated its position in a
July 15, 2005 letter. In its Statement, the State Department
maintained that it "believes that adjudication of this lawsuit at
this time would in fact risk a potentially serious adverse impact
on significant interests of the United States, including
interests related directly to the on-going struggle against
international terrorism." The State Department observed, however,
that its assessment was "necessarily predictive and contingent"
on how the case proceeded, including the intrusiveness of
discovery and the extent to which the case required "judicial
pronouncements on the official actions of the [Government of
Indonesia] with respect to its military activities in Aceh."
(Emphasis added). The State Department included in its submission
a letter from the Indonesian Ambassador to the United States. It
stated that Indonesia "cannot accept the extra territorial
jurisdiction of a United States court over an allegation against
an Indonesian government institution, eq [sic] the Indonesia
military, for operations taking place in Indonesia." The parties
filed additional briefing on the implications of the State
Soon thereafter, a September 2002 order directed the parties to
exchange interrogatories and requests for the preservation of
documents. In 2003 the parties submitted extensive briefing
regarding supplemental authority on Alien Tort Statute cases
(particularly Doe v. Unocal Corp., Civ. Nos. 00-55603,
00-56628). In June 2004 the Supreme Court reached its decision in
Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S. Ct. 2739 (2004),
which was highly relevant to this case. In Sosa Enrique Camarena-Salazar, an agent of the U.S. Drug
Enforcement Agency, was captured, tortured, interrogated, and
eventually killed by suspected drug dealers while on assignment
in Mexico in 1985. Dr. Humberto Alvarez-Machain, a Mexican
physician, allegedly assisted in prolonging the agent's life
during the torture and interrogation. In 1990 a federal grand
jury in California indicted Alvarez for Camarena's murder. The
United States unsuccessfully sought Mexican assistance in seizing
Alvarez. Thereafter the DEA hired Mexican nationals, including
petitioner Jose Francisco Sosa, to abduct Alvarez and bring him
to El Paso, Texas. Sosa and the other Mexican nationals detained
Alvarez overnight, then turned him over to U.S. authorities.
Alvarez was eventually acquitted, and subsequently sued Sosa,
other Mexican citizens, the United States, and four DEA agents
under inter alia the Alien Tort Statute. The trial court
granted summary judgment in favor of Alvarez and awarded him
$25,000. A three-judge Ninth Circuit panel affirmed. In a
subsequent en banc proceeding upholding the panel's decision, the
Ninth Circuit cited an alleged "clear and universally recognized
norm prohibiting arbitrary arrest and detention."
Alvarez-Machain v. United States, 331 F.3d 604, 620 (9th Cir.
2003) (en banc).
The Supreme Court reversed, ruling on factual grounds that a
day-long detention was not a clear violation of international
law. The Court also held that the field of international law
violations cognizable under the Alien Tort Statute are limited to
those cognizable when the statute was passed in 1789, and those
that are "specific, universal, and obligatory," with the caveat
that the door to additional claims "is still ajar subject to
vigilant doorkeeping" by the courts. Sosa, 124 S. Ct. at 2766,
2773-74 (citation and internal quotations omitted).
The Court limited the reach of the statute in part due to the
"collateral consequences" of interfering with U.S. foreign relations. It warned inferior
courts to be "particularly wary of impinging on the discretion of
the Legislative and Executive branches in managing foreign
affairs" (id. at 2763), particularly when the Executive has
expressed its views about the litigation. In such a case, the
views of the Executive should be accorded "serious weight." Id.
at 2766; see also Joo v. Japan, 314 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.").
Thus, the proper degree of deference to the views of the
Executive turns on the actual intrusiveness of the litigation;
courts do not abdicate their Article III responsibilities on
executive command. See Marbury v. Madison, 5 U.S. (Cranch)
137, 177 (1803). Accordingly, it is necessary to identify the
specific intra-Indonesian actions, if any, necessary to support
discovery and adjudication.
II. Federal Statutory Claims
Defendants allege that plaintiffs have failed to state a claim
upon which relief may be granted under the Alien Tort Statute.
That statute confers subject matter jurisdiction over "any civil
action by an alien for a tort only, committed in violation of the
law of nations or a treaty of the United States."
28 U.S.C. § 1350. Plaintiffs are plainly aliens, who bring tort claims; ...