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Doe v. Exxon Mobil Corp.

United States District Court, District of Columbia

June 3, 2019

JOHN DOE I et al, Plaintiffs,
v.
EXXON MOBIL CORPORATION et al, Defendants.

          MEMORANDUM OPINION

          ROYCE C. LAMBERTH UNITED STATES DISTRICT JUDGE

         Pursuant to an agreement with the Indonesian government, Exxon Mobil Corporation, a United States corporation, and several of its wholly owned subsidiaries (hereinafter Exxon) operated a large natural gas extraction and processing facility in the Aceh Province of Indonesia. Plaintiffs are Indonesian citizens who claim that Exxon's security forces engaged in extrajudicial killing; torture; cruel, inhuman, and degrading treatment; and arbitrary detention in violation of the Alien Tort Statute (ATS) and committed various common law torts. Now before the Court is Exxon's motion to dismiss the ATS claims. Def.'s Mot. to Dismiss the ATS Claims, ECF No. 634. For the reasons set forth below, the Court declines to recognize domestic corporate liability under the ATS in circumstances where, as here, the claims have caused significant diplomatic strife. The Court will therefore dismiss plaintiffs' ATS claims against Exxon.

         Plaintiffs only remaining claims are the claims for wrongful death; battery; assault; arbitrary arrest, detention, and false imprisonment; negligence, negligent hiring; negligent supervision; and conversion. Second Am. Compl. ¶¶ 193-240, ECF No. 465 [hereinafter Second Am. Compl.]. These tort claims are governed by Indonesian law. Doe v. Exxon Mobil Corp., 527 Fed.Appx. 7, 7 (D.C. Cir. 2013) (vacating Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011), but expressly preserving the part of the 2011 opinion discussing plaintiffs' non-federal tort claims); Doe v. Exxon Mobil Corp., 69 F.Supp.3d 75 (D.D.C. 2014) (dismissing plaintiffs' claims for intentional infliction of emotional distress and negligent infliction of emotional distress).

         I. Factual Background

         This case arises out of alleged human rights abuses committed at or near natural gas development facilities operated by Exxon in the Aceh Province of Indonesia in 2000 and 2001. Second Am. Compl. ¶¶ 176-86. Plaintiffs allege that they, or their decedents, were detained, tortured, sexually assaulted, killed, or otherwise abused by Exxon's paid military security personnel, who were under Exxon's direction and control. Id. The Court must accept the allegations of the plaintiffs' complaint as true and construe the complaint in favor of the plaintiffs at the motion to dismiss stage. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Exxon operated the facilities in the Aceh Province pursuant to an agreement with the Indonesian government, which granted Exxon exclusive rights to develop and produce natural gas in the area. Second Am. Compl. ¶¶ 22-35. Plaintiffs claim that Exxon's security forces were comprised of members of the Indonesian military. Id. ¶ 33. Security at the facilities was an enormous concern at the time, as there was an ongoing internal conflict in the Aceh Province.' Exxon and its subsidiaries, which were incorporated at the time of the first complaint in New Jersey and Delaware, retained these soldiers as guards for its natural gas facility even though Exxon was allegedly aware that the Indonesian military had committed human rights abuses in the past and that performing the security contract would lead to human rights violations by the Indonesian soldiers against the Aceh residents. Id. ¶¶ 33-55.

         According to the complaint, the Indonesian military's actions could be attributed to Exxon because they were committed by a unit dedicated solely to providing security for Exxon, and Exxon had the authority "to direct[] and control" the soldiers' actions. Id. ¶¶ 34-41. Plaintiffs allege that Exxon's executives in the U.S. received briefings on abuses committed by Exxon security personnel in Aceh against the local population. Id. ¶¶ 46-47, 49. Plaintiffs allege that this information was reported prior to their injuries. Id. ¶¶ 45-55. In particular, plaintiffs allege that Exxon's executives in the U.S. received reports that Exxon security personnel engaged in rape, torture, unlawful detention, assault, and killings. Id. ¶¶ 50-51. They also allege that Exxon's executives in the U.S. received reports from employees and advisors that the Indonesian military had a "poor reputation . . . especially in the area of respecting human rights" and that their deployment in support of Exxon's operations risked "more of a possibility of an unfortunate incident." Id. ¶¶ 46, 48. Plaintiffs allege that Exxon's executives in the U.S. received reports that Exxon security personnel were committing human rights violations' on Exxon property, using Exxon equipment. Id. ¶¶ 50, 52. Also, staff allegedly warned Exxon's executives in the U.S. that supplying additional vehicles to the security personnel could lead to a greater likelihood of abuses by security personnel. Id. ¶ 70. Plaintiffs allege that U.S.-based Exxon executives nevertheless ordered the provision of supplies and vehicles for the Indonesian security personnel and that the underlying international law violations were committed using these supplies and vehicles. Id. ¶¶ 43, 89-91.

         II. Procedural History

         Judge Oberdorfer, who initially presided over this case, dismissed all of plaintiffs' ATS claims in 2005 following the Supreme Court's decision in Sosa, reasoning in part that adjudicating such claims could create diplomatic friction with Indonesia. See Doe v. Exxon Mobil Corp., 393 F.Supp.2d 20, 22-27 (D.D.C. 2005). In response to Judge Oberdorfer's request, the U.S. State Department had submitted a Statement of Interest in 2002 warning that the lawsuit 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." Id. at 22; see Letter from William H. Taft, IV, Legal Adviser, Dep't of State, to the Honorable Louis F. Oberdorfer, U.S. Dist. Judge, U.S. Dist. Court for D.C. 1-2 (July 29, 2002), Amicus Curiae United States' Statement of Interest, ECF No. 38 [hereinafter Letter from William H. Taft, IV, Legal Adviser, Dep't of State, to the Honorable Louis F. Oberdorfer, U.S. Dist. Judge, U.S. Dist. Court for D.C. 1-2 (July 29, 2002), ECF No. 38]. The Government of Indonesia also objected to the litigation in a diplomatic note, stating 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." Id. The concerns about diplomatic strife with Indonesia, among other reasons', led Judge Oberdorfer to dismiss the ATS claims against Exxon. Id. at 22-27.

         Plaintiffs appealed Judge Oberdorfer's dismissal of the ATS claims to the D.C. Circuit. Exxon argued for the first time that a corporation is immune from liability under the ATS in a cross-appeal. Doe v. Exxon Mobil Corp., 654 F.3d 11, 15 (D.C. Cir. 2011), vacated, 527 Fed.Appx. 7 (D.C. Cir. 2013). The D.C. Circuit reversed and restored the ATS claims in 2011. Id. The D.C. Circuit held that the ATS generally permitted corporate liability, over then-Judge Kavanaugh's dissent. Id. at 39-57, 71-91. This opinion was vacated in 2013 based on intervening changes in the law governing the extraterritorial reach of the ATS and the standard for aiding and abetting liability. Doe, 527 Fed.Appx. at 7 (D.C. Cir. 2013).

         Exxon again argued that corporations may not be held liable for causes of action arising under the ATS in 2015. Doe v. Exxon Mobil Corp., No. CV 01-1357, 2015 WL 5042118, at *2 (D.D.C. July 6, 2015). This Court rejected this argument based on the reasoning provided in the D.C. Circuit's 2011 opinion. Id. This Court reasoned that the D.C. Circuit's opinion on the matter was vacated because of issues unrelated to the question of corporate liability under the ATS, so there was no basis to revisit the question at that time. Id. But the 2015 opinion did dismiss the claim for disappearance under the ATS because this claim was not a "specific, universal, and obligatory" norm under customary international law. Id. at *4.

         Shortly after the Supreme Court granted the petition for certiorari in Jesner v. Arab Bank, 138 S.Ct. 1386 (2018), the parties jointly proposed a stay until Jesner was decided. Joint Notice of Filing of Proposed Scheduling Order, ECF No. 625. The Court agreed. Scheduling Order, ECF No. 630.

         In April 2018, the Supreme Court issued its most recent ATS decision in Jesner. 138 S.Ct. at 1386. The' Court categorically foreclosed ATS liability for foreign corporations. Id. Exxon contends that the Jesner Court's rationale and the various opinions of the five Justices comprising the majority in that opinion are not limited to foreign corporations. Def.'s Mot. to Dismiss the ATS Claims, ECF No. 634. Exxon argues Jesner should be read to extend to domestic corporate liability under the ATS in circumstances where such claims threaten, or have already created, diplomatic strife. Id. This led Exxon to bring its present motion to dismiss the ATS claims. Id.; Mot. to Set a Briefing Schedule and Stay Further Proceedings, ECF No. 631. The Court stayed all further proceedings pending the resolution of this motion to dismiss. Order, ECF No. 632.

         III. Discussion

         A. The Alien Tort Statute

         The ATS provides: "The 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 ATS is merely a jurisdictional grant. Sosa v. Alvarez-Machain, 542 U.S. 692, 713-14 (2004). The statute, which was passed by the First Congress, does not provide a statutory cause of action or explain the definition of a cause of action for violations of international law. Id.

         The Supreme Court has articulated the historical backdrop that created the impetus for passing the ATS. Under the Articles of Confederation, the Continental Congress lacked authority to "cause infractions of treaties, or of the law of nations to be punished." Id. at 716 (quoting J. Madison, Journal of the Constitutional Convention 60 (E. Scott ed. 1893)). Concerns with the international relations tensions resulting from the lack of ability to punish violations of treaties and the law of nations "persisted through the time of the Constitutional Convention." Id. at 717. The inability of the central government under the Articles of Confederation to ensure adequate remedies for foreign citizens caused substantial foreign relations problems. Jesner, 138 S.Ct. at 1396. In 1784, the French Minister lodged a formal protest with the Continental Congress after a French adventurer assaulted the Secretary of the French Legion in Philadelphia. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 120 (2013). In 1787, a New York constable caused an international incident when he entered the Dutch Ambassador's house and arrested one of his diplomatic servants. Id. Under the Articles of Confederation, "there was no national forum available to resolve disputes like these under any binding laws that were or could be enacted or enforced by a central government." Jesner, 138 S.Ct. at 1396.

         The Framers addressed these issues at the 1787 Philadelphia Convention. Id. Article III of the Constitution extends federal judicial power to "all cases affecting ambassadors, other public ministers and consuls," and "to controversies . . . between a state, or the citizens thereof, and foreign states, citizens, or subjects." U.S. Const, art. Ill. § 2. The First Congress passed the Judiciary Act of 1789 to implement these constitutional provisions. The Judiciary Act of 1789 authorized federal jurisdiction over suits involving disputes between aliens and U.S. citizens and suits involving diplomats. Judiciary Act of 1789, ch. 20, §§ 9, 11, 1 Stat. 73, 76-79. The Judiciary Act also included what is now known as the ATS. Id. § 9.

         Although the ATS is "strictly jurisdictional," the Supreme Court has recognized that it "was not enacted to sit on a shelf waiting further legislation." Jesner, 138 S.Ct. at 1398 (citing Sosa, 542 U.S. at 713-14). Instead, Congress enacted it with the understanding that the common law would provide causes of action for a modest number of international law violations. Sosa, 542 U.S. at 724.

         In the 18th century, international law primarily governed relationships between and among nation-states. Jesner, 138 S.Ct. at 1397. But international law governed individual conduct occurring outside national borders in a few instances. Id.; Sosa, 542 U.S. at 714-15. There was also a narrow domain in which "rules binding individuals for the benefit of other individuals overlapped with the norms of state relationships." Sosa, 542 U.S. at 715. Blackstone understood this sphere to include "three specific offenses against the law of nations addressed by the criminal law of England: violation of safe conducts, infringement of the rights of ambassadors, and piracy." Id. (citing 4 William Blackstone, Commentaries on the LaWs of England 68 (1769)). "It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs, that was probably on the minds of the men who drafted the ATS." Id.

         The ATS's primary objective, when first enacted, was to avoid foreign entanglements by ensuring that a federal forum was available where the failure to provide a forum might cause another nation to hold the U.S. responsible for a foreign citizen's injury. Id. at 1397; see Kiobel, 569 U.S. at 123-24; Sosa, 542 U.S. at 715-19.

         B. Sosa, ...


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