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Media Alerts - Saldana v. Occidental Petroleum - Ninth Circuit
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January 30, 2015
  Saldana v. Occidental Petroleum - Ninth Circuit
Headline: Ninth Circuit panel affirms the dismissal by the district court of an action in which family members of three union leaders killed in Columbia sued Occidental Petroleum under the Alien Tort Statute and California tort law, as the action raised nonjusticiable political questions.

Area of Law: Political Question Doctrine

Issue Presented: Whether the district court had subject matter jurisdiction over a claim when Plaintiffs "advanced no theory of liability . . . that would not apply with equal force to the foreign policy and national security determinations made by the political branches."

Brief Summary: Plaintiffs were family members of three union workers killed by several soldiers who belonged to the 18th Brigade of the Colombian National Army ("CNA"). The murders occurred in 2004. After a hearing by Colombian courts, the soldiers were found guilty; however the 18th Brigade was absolved of any responsibility for the soldier's actions. A further hearing by the United Nations Office of the High Commissioner for Human Rights also concluded the soldiers acted alone and not part of any general government policy.

Seven years later, Plaintiffs sued Occidental Petroleum in the Central District of California under the Alien Tort Statute and California tort law, claiming Occidental bore responsibility for the murders. Their theory was that, since Occidental's Colombian subsidiary, OxiCol, had provided funding to the 18th Brigade in return for protecting a pipeline under OxiCol's control, Occidental had control of the18th Brigade and was therefore ultimately responsible for these murders.

The district court dismissed the complaint, finding that, since both Occidental and the United States government provided funding to the 18th Brigade, Plaintiffs had established no separate cause of action that would not implicate United States foreign policy. Therefore, the court held the claims advanced were nonjusticiable due to the political question doctrine. Plaintiffs appealed to the Ninth Circuit.

The Ninth Circuit panel reviewed the issue de novo. The panel applied the six-factor test elucidated in Baker v. Carr, 369 U.S. 186 (1962), and determined there was no way to sever Plaintiffs' claims from the political question doctrine. Since Plaintiffs advanced no theory explaining Occidental's control over the 18th Brigade that did not involve Occidental's partial funding of the Brigade, and the United States was also involved in funding the 18th Brigade, any adjudication involving this issue would necessarily involve second guessing U.S. Foreign policy.

Extended Summary: Occidental Petroleum ("Occidental") is a Houston based oil and gas exploration and production company. Occidental is a Delaware corporation, and has headquarters in Los Angeles, where it was founded in 1920. In 2004, Occidental was engaged in exploration for oil and natural gas in Colombia. At that time, the Colombian government, often with the assistance of the U.S. government, was involved in a conflict with leftist guerrilla groups, most notably the Revolutionary Armed Forces of Colombia ("FARC") and the National Liberation Army ("ELN").

Occidental's Colombian subsidiary, Occidental de Colombia ("OxyCol"), together with Ecopetrol, Colombia's state-owned oil company, had previously discovered a large oil field. OxyCol and Ecopetrol built a pipeline to transport the oil from the oil field to the coast, to be transported by tanker. OxyCol operated the pipeline while Ecopetrol, OxyCol, and a Spanish oil company called Repsol, controlled the oilfield. The pipeline cut through guerrilla territory, and was subjected to increasing attacks from guerrilla forces in the early 2000's as the guerrillas attempted to disrupt the Colombian economy.

In response, the United States, through a $99 million aid program, attempted to help secure the pipeline from guerrilla attacks. Part of this aid went to funding, training, and equipping the 18th Brigade, part of the Colombian army. U.S. Special Forces were involved in training the 18th Brigade. In May 2004, Ecopetrol agreed to provide the Colombian Ministry of National Defense with financial support in exchange for increased protection of the pipeline. Neither Oxycol nor Occidental were signatories to the agreement, but along with the United States government, also began to provide funding.

In August 2004, four members of the 18th Brigade assisted by a civilian murdered three union leaders. They claimed the leaders were guerrillas who had attacked the soldiers. The families of the union members claimed the soldiers executed the union leaders. The union leaders were part of a larger protest movement. This movement claimed the pipeline was responsible for environmental destruction, and also claimed the Columbian National Army ("CNA") was committing "acts of barbarity" in connection with protecting the pipeline. Furthermore, the movement protested OxyCol's plan to drill on land belonging to the indigenous U'Wa people.

Proceedings in Colombia regarding the incident determined that the soldiers were guilty of executing the union leaders, but that they acted alone, without the involvement of the CNA. The United Nations Office of the High Commissioner for Human Rights also concluded the killings were not "committed as part of an official policy or that they were ordered by senior government officials. The United States State Department has asserted since then "that the Colombian Government and Armed Forces are meeting statutory criteria related to human rights and severing ties to paramilitary groups."

Plaintiffs filed suit against Occidental in 2011 in the Central District of California. Three causes of action were alleged under 28 U.S.C. ยง 1350, known as the Alien Tort Statute, and seven were alleged under California tort law. Plaintiffs claimed Occidental was responsible for the actions of its subsidiary, OxiCol. Plaintiffs claimed the financial support given the 18th Brigade by OxiCol made the 18th Brigade OxiCol's personal security force, with operational control over the 18th Brigade's activities. The complaint alleged that "Occidental knew or should have known" of "widespread human rights violations" committed by the CNA, in particular, the 18th Brigade. Plaintiffs alleged this knowledge and control of the 18th Brigade by Occidental's Colombian subsidiary made Occidental responsible for war crimes committed by the 18th Brigade against Colombian civilians.

The district court granted Occidental's 12(b)(1) motion to dismiss on political question grounds. The court relied on Baker v. Carr, 369 U.S. 186 (1962), and Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir. 2007). The District Court held "that Plaintiffs 'advanced no theory of liability that would not apply with equal force to the foreign policy and national security determinations made by the political branches . . .'" and therefore the political question doctrine could not be avoided. Since Plaintiffs had not requested additional time for discovery, the suit was dismissed with prejudice.

The Ninth Circuit panel reviewed the district court's dismissal for lack of jurisdiction de novo. The panel determined they may "look beyond the compliant to facts properly in the record, id. at 982, and 'need not presume the truthfulness of the plaintiffs' allegations,' White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)."

The Court stated that, as held in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803), the judicial branch has no jurisdiction over political questions due to the separation of powers between the branches of government. The determinative factor is whether or not "Plaintiff's claims implicate a nonjusticiable political question." Baker, supra, provides a six factor test with which to weigh each claim in the complaint. These factors include (1) whether a political department has a constitutional commitment to the issue; (2) no judicially discoverable or manageable standards to resolve the issue; (3) the impossibility of deciding whether the issue is fit for judicial review without first considering the policy non-judicially; (4) whether a judicial resolution would express lack of respect for the other branches of government; (5) a requirement for adherence to previously made political decisions; or (6) the potential of embarrassment to other branches of the government.

Applying these factors, the Ninth Circuit panel determined the district court's analysis was correct. The panel concluded that, once the complaint was "stripped of implausible allegations," each of the Plaintiff's claims of Occidental's "control" of the 18th Brigade rested on nothing more than Occidental's partial funding of the 18th Brigade. The court could find no "principled way to sever Occidental's funding from that of the United States . . . ."

Therefore, the allegations in the complaint were "inextricably bound" with the political question of "the propriety of the United States' decision to provide $99 million worth of training and equipment at the same time and for the same purpose as Occidental allegedly providing $6.3 million - and thus beyond the jurisdiction of our courts."

This holding was supported by Corrie v. Caterpillar, supra, in which Plaintiffs sued Caterpillar for supplying bulldozers to the Israeli Defense Forces, one of which crushed Rachel Corrie, a protestor of Israel's practice of demolishing homes that belonged to the families of terrorists. Since the sales of Caterpillar tractors to the Israeli military was financed by the United States government, the court dismissed the complaint, as "the action 'would necessarily require the judicial branch . . . to question the political branches' decision to grant extensive military aid to Israel.'"

The Court went on to explain that Plaintiffs were wrong in asserting the Court need only consider Occidental without looking to the United States government's role since United States foreign policy would have to be considered in a resolution of the case. Plaintiff's cited cases in support of this argument that Occidental's role could be considered separately from that of the United States government, but the cases Plaintiffs cited dealt with execution of military-related operations, and not the policy behind them, and so were therefore distinguishable from this case. Plaintiff's might have been able to sever their claims under their agency theory of liability and negligent hiring, but they failed to "plausibly plead those claims, because they have not pleaded 'factual content that allows the court to draw the reasonable inference that' Occidental had operational control of the 18th Brigade."

Lastly, Plaintiff's asserted the failure of the State Department to submit a statement of interest "indicates a lack of conflict." However, precedence "clearly state[d] that the State Department's silence on this issue [was] a neutral factor. Alperin, 410 F.3d at 556." And since Plaintiff's did not pursue discovery on the political question issue below, the Ninth Circuit panel declined to consider this issue.

Judge Trott, in his concurring opinion provided more background information which supported the finding that the complaint raised nonjusticiable political questions.

For the full opinion:

Panel: Alex Kozinski, Stephen S. Trott, and Consuelo M. Callahan, Circuit Judges

Date of Issued Opinion: December 15, 2014

Docket Number: 12-55484

Decided: Affirmed

Case Alert Author: Michael Zatlin

Counsel: Terrence P. Collingsworth (argued), Conrad & Scherer, LLP,
Washington, D.C., for Plaintiffs-Appellants. Matthew T. Kline (argued) and Dimitri D. Portnoi,
O'Melveny & Myers LLP, Los Angeles, California; Jonathan
Hacker and Anton Metlitsky, O'Melveny & Myers LLP,
Washington, D.C., for Defendant-Appellee.

Author of Opinion: Per Curiam. Concurrence by Judge Trott.

Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 01/30/2015 05:38 PM     9th Circuit  

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