Guest blog: More on Exxon v. Doe

One of the cases on yesterday’s conference was No. 07-81, Exxon v. Doe. The Solicitor General has recommended that cert. be denied in the case, which involves whether the collateral order doctrine permits an immediate appeal of a denial of a motion to dismiss on political question grounds, where the State Department has expressed concern the litigation could adversely impact U.S. interests abroad.  Lyle’s earlier coverage of the invitation brief here. Guest blogger Luisa Caro has also provided the following backgrounder on the case.

Exxon Mobil Corp. v. Doe I, et al. (No. 07-81) involves a claim by eleven Indonesian villagers that Exxon Mobil and its Indonesian subsidiary used soldiers of the Indonesian military to guard an Exxon natural gas plant in Aceh province, resulting in acts of murder, torture, and other atrocities by the soldiers. Click the following links to access the opinion below of the D.C. Circuit, petition for certiorari, brief in opposition, and petitioner’s reply.

In its petition, Exxon argues that the district court should have dismissed the entire case against it and that its appeal from that ruling was proper as a collateral order under the political question doctrine.  Exxon argues that any adjudication of the villagers’ claims would necessarily involve an adjudication of the conduct of the Indonesian government in Aceh province.  The district court sought the State Department’s views and received a “statement of interest” indicating that “adjudication of this lawsuit at this time would in fact risk a potentially serious averse impact on significant interests of the United States.”  A year later, a second statement of interest reiterated that “it remains the United States’ position that adjudication of this case would raise foreign policy and national security concerns.”  In response to the State Department’s letters, the district court dismissed all federal claims against Exxon on the basis of the political question doctrine. The district court, however, did not dismiss the state-law tort claims based on the same factual predicates. The D.C. Circuit rejected Exxon’s appeal – holding that such an appeal would be a broad expansion of the collateral order rule and that the order was not “unreviewable upon appeal from final judgment” – and denied its request for mandamus.  The court of appeals also concluded that the letter from the State Department was not an unambiguous request for dismissal of the entire case.

Exxon contends that the political question doctrine applies to the entire case, not just the federal claims, given that all the claims are based on the same factual predicate involving the actions of the Indonesian military.  Second Exxon argues that the case is “unreviewable” because U.S. relations with Indonesia will be damaged simply by allowing the litigation itself to proceed.  Finally, Exxon argues that the growing number of cases brought in U.S. courts by non-U.S. plaintiffs against foreign governments suggests the need for appellate review.

Opposing certiorari, respondents argue that Exxon’s appeal would be an unnecessary expansion of the collateral order doctrine with respect to political questions. Moreover, they argue that the United States only asked for dismissal of the federal claims (under the Alien Tort Statute and Torture Victims Protection Act), and that the United States made no further statement regarding the case subsequent to the district court’s decision on the motion to dismiss.  Respondents further point to the fact that the limited discovery allowed by the district court-limiting discovery to documents outside Indonesia-occurred without issue and already ended.

Respondents argue that no case has held that denial of a motion to dismiss on political question grounds is immediately appealable as a collateral order and therefore that Exxon is seeking an expansion of a purposefully narrow doctrine.  They point to the important distinction between a case brought against a sovereign and a case, such as this one, brought against a private corporation that does not claim immunity.  Finally, they point to Exxon’s failure to seek certification of the district court’s order for interlocutory appeal under 28 U.S.C. § 1292(b), and note that Exxon is not appealing from the Circuit’s denial of mandamus.

In reply, Exxon vehemently rejects respondents’ argument that the United States ceased to object to the litigation.  Exxon also emphatically states that the litigation will hurt U.S. interests by adjudicating facts involving the conduct of the Government of Indonesia, thus attacking the sovereignty of an important ally in fighting terrorism.

On November 13, 2007, the Court invited the Solicitor General to file a brief expressing the views of the United States.