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, ...