United States District Court, D. Columbia
October 14, 2005.
JOHN DOE I, et al., Plaintiffs,
EXXON MOBIL CORPORATION, et al., Defendants.
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
A. Alien Tort Statute
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; the
remaining issue is whether plaintiffs have adequately pled that
defendants violated the law of nations.
Plaintiffs allege a host of potential violations, including
genocide, torture, crimes against humanity, arbitrary detention
(kidnaping), extrajudicial killing (including murder), and sexual violence. See Compl. ¶ 26. Defendants respond that adjudication
of these claims impermissibly interferes with Indonesia's
sovereignty and U.S. foreign policy, and that plaintiffs fail to
allege facts that would, if proved, fix liability on Exxon and PT
Arun. In assessing whether plaintiffs have stated a claim under
the Alien Tort Statute, courts must conduct a more searching
merits-based inquiry than is required in a less sensitive arena.
See, e.g., Walsh v. Ford Motor Co., 588 F. Supp. 1513, 1519
(D.D.C. 1984) (citation omitted), vacated on other grounds by
807 F.2d 1000 (D.C. Cir. 1986).
In this light, defendants cannot be held liable for violations
of international law on a theory that they aided and abetted the
Indonesian military in committing these acts, largely for the
reasons explained by the court in In re South Af. Apartheid
Litig., 346 F. Supp. 2d 538, 549-51 (S.D.N.Y. 2004). In that
case, three groups of black South Africans sued several
multinational corporations that had conducted business in South
Africa during the apartheid years. Plaintiffs there alleged that
defendants violated international law and were liable under the
Alien Tort Statute. The trial court dismissed the complaint, and
held that liability for "aiding and abetting" violations of
international law was not itself actionable under the Alien Tort
Statute. In reaching its conclusion, the court was "heedful of
the admonition in Sosa that Congress should be deferred to with
respect to innovative interpretations" of the Alien Tort Statute.
Id. at 550. The court also was "mindful of the collateral
consequences and possible foreign relations repercussions that
would result from allowing courts in this country to hear civil
suits for the aiding and abetting of violations of international
norms across the globe." Id. at 551; see also Central Bank
of Denver v. First Interstate Bank of Denver, 511 U.S. 164,
181-82 (concept of aiding and abetting in a civil context is "at
best uncertain in application" and that, when Congress has not expressly provided for civil aider and abetter liability,
it will not be inferred), superseded in part by statute in
15 U.S.C. § 78t(e).*fn3
Nor can plaintiffs maintain a claim for "sexual violence,"
because it is not sufficiently recognized under international law
and is not a "specific, universal, and obligatory" norm (although
claims of sexual violence may be cognizable elements of such
illegal conduct as torture).
Defendants here also contend that plaintiffs have failed to
exhaust local remedies on the remaining allegations, thereby
precluding their Alien Tort Statute claims. Sosa indicated that
exhaustion may be necessary "in an appropriate case," but it did
not directly rule on the issue. 124 S. Ct. at 2766 n. 21. Even
assuming plaintiffs must exhaust local remedies, however, it is
apparent here that efforts to pursue this case in Indonesia would
be futile. See Hammontree v. NLRB, 925 F.2d 1486, 1517 (D.C.
Cir. 1991) ("exhaustion is a prudential doctrine that should be
applied flexibly and not when further pursuit of remedies is
futile.") (citation omitted). Defendants submit an affidavit from
Indonesian Supreme Court Justice Bismar Siregar stating that
plaintiffs' claims could be litigated in Indonesia. Plaintiffs
effectively counter that they risk the very real possibility of
reprisals, including death, if they pursue their claims there. A
substantial and serious threat of violence easily meets the
futility standard. See Rasoulzadeh v. Assoc. Press,
574 F. Supp. 854, 861 (S.D.N.Y. 1983), aff'd without op. 767 F.2d 908
(2nd Cir. 1985). 1. Genocide and Crimes Against Humanity
Genocide has been defined as "acts calculated to bring about
the physical destruction, in whole or in part, of a national,
ethnic, racial, or religious group." Tel-Oren v. Libyan Arab
Repub., 726 F.2d 774, 806 (D.C. Cir. 1984) (Bork, J.,
concurring) (citation omitted). Similarly, a systematic attack on
certain segments of a population is a crime against humanity.
See Presbyterian Church of Sudan v. Talisman Energy, Inc.,
226 F.R.D. 456, 479-80 (S.D.N.Y. 2005) (citations omitted).
Genocide and crimes against humanity are generally actionable
under the Alien Tort Statute as international law violations.
However, by definition these claims require adjudication on
whether the Indonesian military was engaged in a plan allegedly
to eliminate segments of the population; assessing whether Exxon
is liable for these international law violations would be an
impermissible intrusion in Indonesia's internal affairs. In Doe
v. Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004), the court declined
to adjudicate claims of genocide and crimes against humanity when
those claims required the court to evaluate the policy or
practice of the foreign state. See id. at 1307-11. That
precedent will be followed here.
2. Torture, Arbitrary Detention, and Extrajudicial Killing
In general, resolving claims of complicity in arbitrary
detention, torture, and extrajudicial killing pose less of a
threat of infringing Indonesia's sovereignty. These allegations
are more targeted to actions by individuals, rather than a plan
of mass killing or mayhem. They also conceivably violate the law
of nations. See Sosa, 124 S. Ct. at 2768 (citing with
approval the Restatement (Third) of Foreign Relations Law's
conclusion that a "`state violates international law if, as a
matter of state policy, it practices, encourages, or condones . . .
prolonged arbitrary detention'") (citation omitted); id. at
2763 (holding that the Torture Act contains "a clear mandate . . . providing authority that `establish[es] an
unambiguous and modern basis for' federal claims of torture and
extrajudicial killing") (citation omitted); see also Tel-Oren
v. Libyan Arab Repub., 726 F.2d 774, 777 (D.C. Cir. 1984)
(Edwards, J., concurring). However, as explained below,
plaintiffs fail to plead these violations adequately.
a. Color of Law
Traditionally only states (and not persons) could be liable
under the Alien Tort Statute for torture, arbitrary detention, or
extrajudicial killing. See Sanchez-Espinoza v. Reagan,
770 F.2d 202, 206-07 (D.C. Cir. 1985). Recently, however, a few
courts have held individuals liable for Alien Tort Statute
violations when they acted under color of law. These courts have
borrowed heavily from 42 U.S.C. § 1983 color of law
jurisprudence. See, e.g., Bigio v. Coca-Cola Co.,
239 F.3d 440, 448 (2nd Cir. 2001). Reasoning in these cases is
unpersuasive, however. Grafting § 1983 color of law analysis onto
international law claims would be an end-run around the accepted
principle that most violations of international law can be
committed only by states.*fn4 See Sanchez-Espinoza,
770 F.2d at 706-07. Recognizing acts under color of law would
dramatically expand the extraterritorial reach of the statute.
Just as aider and abetter liability for international law
violations has been rejected by some courts as overly expansive
and beyond Congress' mandate (see supra Part II.A.), basing
liability for Alien Tort Statute violations on color of law
jurisprudence is a similar overreach.
The Supreme Court has recently admonished that "the
determination whether a norm is sufficiently definite to support a cause of action should (and,
indeed, inevitably must) involve an element of judgment about the
practical consequences of making that cause available to
litigants in the federal courts." Sosa, 124 S. Ct. at 2766.
Similarly, here the State Department warns of untoward
consequences of endangering United States' relations with
Additionally, it is notoriously difficult to determine when a
party has acted under color of law, making it harder for courts
to engage in "vigilant doorkeeping." See, e.g., Lebron v.
Nat'l R.R. Passenger Corp., 513 U.S. 374, 378 (1995). It is also
highly unfair to corporations operating in states with
potentially problematic human rights records which under the
color of law rule may (or may not) be subject to liability for
doing business there and benefitting from the state's
infrastructure. Indeed, the Supreme Court suggested that only
states, and not corporations or individuals, may be liable for
international law violations. See Sosa, 124 S. Ct. at 2766 n.
20 ("A related consideration is whether international law extends
the scope of liability for a violation of a given norm to the
perpetrator being sued, if the defendant is a private actor such
as a corporation or individual.").
Apart from the doctrinal flaw in applying color of law
analysis, plaintiffs fail to allege adequately either of the two
bases upon which color of law arguably can be based joint
action, and proximate cause.
i. Joint Action
Joint action requires an agreement or understanding to deprive
a party of their constitutional rights. See, e.g., Parker v.
Grand Hyatt Hotel, 124 F. Supp. 2d 79, 88 (D.D.C. 2000).
Plaintiffs allege that Exxon and PT Arun worked with the military
as joint actors in securing the pipeline, during which the
military allegedly committed human rights abuses. As explained below, these allegations are insufficient to
demonstrate that Exxon had an agreement or understanding jointly
with the Indonesian military to violate plaintiffs' human rights.
In support of their argument, plaintiffs point to Doe v.
Unocal Corp., 110 F. Supp. 2d 1294 (C.D. Cal. 2000), vacated
without opinion by 403 F.3d 708 (9th Cir. 2005) as involving a
legal theory "essentially identical" to their own. In that case
plaintiffs provided evidence that defendants hired the military
for its oil exploration project, and the military used forced
labor and committed other atrocities to complete an oil pipeline.
Plaintiffs also provided evidence that defendants knew or should
have known "that the military did commit, was committing, and
would continue to commit these tortious acts." Id. at 1306.
Even though Unocal and the military shared a common goal of a
profitable project, the court found no joint action, because
there was no evidence defendants "participated in or influenced"
the military's unlawful conduct. Id. Similarly, in this case
plaintiffs do not sufficiently allege that defendants
participated in or influenced the military's actions that
allegedly caused the human rights violations. See Gallagher v.
Neil Young Freedom Concert, 49 F.3d 1442, 1453-56 (10th Cir.
1995) (holding that university officials did not engage in joint
action to deprive concertgoers of their constitutional rights by
conducting pay-down searches, when officials attended meeting at
which promoter directed security company to conduct these
Most important, 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.*fn5 For reasons explained above, such an inquiry cuts
too close to adjudicating the actions of the Indonesian government, and for that independent
reason, should be avoided on justiciability grounds.
ii. Proximate Cause
Another potential theory of liability is that defendants
proximately caused the human rights violations, in this case by
directing and controlling the military's actions. However, the
proximate cause theory is inapplicable here, because it is not a
proper basis for establishing "color of law." A determination of
whether a party proximately caused an injury is quite distinct
from whether it acted under color of law. Indeed, plaintiffs
concede this point when they argue that the "issues of intent and
causation [regarding proximate cause] are issues of liability
distinct from the analysis of whether Exxon Mobil is a state
actor." Pls' Opp. to Defs' Mot. to Dismiss, at 16; see Sheldon
H. Mahmod, 1 Civil Rights and Civil Liberties Litig. § 2:4, at
2-14-15 (4th ed. 2003).
On a factual basis, plaintiffs do not sufficiently allege that
defendants proximately caused human rights violations. The court
in Unocal adopted the proximate cause analysis, but nonetheless
found that defendants were not the proximate cause of the
injuries because plaintiffs failed to "prove that private
individuals exercised control over the government official's
decisions." Unocal, 110 F. Supp. 2d at 1307. Largely for the
reasons explained above (see supra Part II.A.2.a.i.),
plaintiffs' allegations fall short of establishing proximate
cause here, because defendants did not sufficiently allege that
defendants controlled the Indonesian military's actions.*fn6 B. Torture Victim Protection Act ("Torture Act")
The Torture Act creates liability for "[a]n individual" who
subjects an individual to torture or extrajudicial killing.
28 U.S.C. § 1350 note § 2(a)(1)-(2). The parties disagree about the
meaning of "individual." Plaintiffs argue that "individual" means
a "person," which includes corporations. Defendants insist that
the word "individual" has a precise meaning and is limited to
human beings. On balance, the plain reading of the statute
strongly suggests that it only covers human beings, and not
corporations. See Clinton v. New York, 524 U.S. 417, 428-29
nn. 13-14 (1988) (holding that term "individual" meant "person"
in the specific context of the line-item veto legislation, but
noting that "Congress did not intend the result that the word
`individual' would dictate in other contexts," when "person"
ordinarily had a broader meaning than "individual").
Even if "individual" could be construed to mean "corporation,"
plaintiffs face a larger problem. By the clear language of the
Torture Act, a party must act "under actual or apparent
authority, or color of law" to be liable under the statute.
28 U.S.C. § 1350 note § 2(a)(1)-(2). As explained above (see
supra Part II.A.2.a.), defendants did not act under color of
law. In addition, determining whether they acted under color of
law impermissibly requires adjudication of another country's
actions. See Kadic v. Karadzic, 70 F.3d 232, 245 (2d Cir.
1995) (legislative history of Torture Act confirms that plaintiff
must establish government involvement in killing or torture to
state a claim).
C. Violence Against Women
Plaintiffs also allege that defendants are liable for "Violence
Against Women." See Compl. ¶ 73-76. However, these allegations seem to be largely a
restatement of the claims under the Alien Tort Statute and
Torture Act. See id. ¶ 75 ("The acts described herein are
actionable under both the ATCA and the TVPA."). For the reasons
enumerated above (see supra Part II.B-C), this claim is
D. Lack of Subject Matter Jurisdiction
Defendants also move to dismiss based on lack of subject matter
jurisdiction. The Alien Tort Statute itself only grants personal
jurisdiction and does not create an independent cause of action.
See Sosa, 124 S. Ct. at 2761. Because plaintiffs have failed
to state a claim under the Alien Tort Statute, then there is no
subject matter jurisdiction over the international law claims as
III. State Law Tort Claims
There remains for consideration the state law tort claims.
As previously noted, defendants argue that the complaint should
be dismissed in its entirety as nonjusticiable. Proper concern
for Indonesia's sovereignty requires the dismissal of PT Arun LNG
Co., an entity that is 55% owned by Pertamina, Indonesia's
state-owned oil and gas company. Adjudicating the liability of an
entity owned by the Indonesian government would create a
significant risk of interfering in Indonesian affairs and thus
U.S. foreign policy concerns.*fn7 Defendants' argument to dismiss the remaining state law tort
claims on justiciability grounds is without merit. These claims
are allowed to proceed, with the proviso that the parties are to
tread cautiously. Discovery should be conducted in such a manner
so as to avoid intrusion into Indonesian sovereignty. To this
end, there will be firm control over any discovery conducted by
B. Forum Non Conveniens
Defendants move to dismiss this action in favor of litigation
in Indonesia as the more convenient forum. Plaintiffs contend
that litigating their claims in Indonesia would pose a serious
risk to their safety, and that Indonesian courts would be biased.
Plaintiffs plead that there is a genuine risk of reprisals if
they publicly identify themselves by attempting to litigate in
Indonesia. See Pls' Opp. to Defs' Mot. to Dismiss, at 40-42
(describing judicially noticeable*fn8 press reports about
the disappearance of Jafar Siddiq Hamzah and other Indonesians
investigating alleged human rights abuses). This recorded
experience adequately supports plaintiffs' contention that
prosecution of this suit in Indonesia would be futile. See
Rasoulzadeh v. Assoc. Press, 574 F. Supp. 854, 861 (S.D.N.Y.
1983) (dismissing defendant's forum non conveniens motion when
litigating plaintiffs' claims in Iran posed a significant risk to
plaintiffs' safety), aff'd without op. 767 F.2d 908 (2nd Cir.
C. Personal Jurisdiction
Defendants contend that Exxon Mobil Oil Indonesia ("Exxon
Indonesia") has not had sufficient contacts with the District of Columbia to support
personal jurisdiction under D.C.'s long-arm statute. See D.C.
Code § 12-423. Plaintiffs contend that jurisdiction exists in
this forum because Exxon Indonesia is the alter ego of Exxon
Mobil Corporation, which concededly is engaged in business with
offices here. Plaintiffs have sufficiently pled facts that, if
true, would support jurisdiction over Exxon Indonesia as an alter
ego of Exxon Mobil. See Shapiro, Lifschitz & Schram v. R.E.
Hazard, 90 F. Supp. 2d 15, 22 (D.D.C. 2000) ("Where affiliated
parties are alter egos of a corporation over which the Court has
personal jurisdiction . . . the corporation's contacts may be
attributed to the affiliated party for jurisdictional
D. Statute of Limitations John Doe V
Defendants further contend that the statute of limitations bars
the claim of John Doe V because his allegations concern actions
by the military in "1990." See Compl. ¶ 52. Plaintiffs do not
respond to this argument. However, all other plaintiffs allege
mistreatment in the years 2000 or 2001. See Compl. ¶¶ 48-51;
53-58. Defendants' motion to dismiss John Doe V's claims will be
denied without prejudice, subject to plaintiffs' response to the
Order to Show Cause why John Doe V's claims should not be
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. The details remain unresolved,
but the parties are urged to propose discovery plans consistent
with these suggestions.
Finally, plaintiffs have not pled any independent basis for
subject matter jurisdiction over these claims. See Compl. ¶ 4.
Nor have they identified the state of the United States whose
tort law should, in their view, apply. The accompanying Order
directs plaintiffs to address these issues.