Thursday, March 27, 2008

12 March 2008

Bowoto v. Chevron

US District Court for the Northern District of California

Nigerian villagers who are suing Chevron (for the last 9 years!) moved to withdraw half of their claims that the oil company was responsible for military attacks on protesters in the late 1990s.

Without any explanation--even to the judge during a later CMC--Ps' lawyers asked Judge Illston to dismiss claims by 25 Nigerians re: a January 1999 attack on villages near oil facilities in the Niger Delta where residents had violently protested against Chevron.

In their lawsuit, the plaintiffs had alleged that Nigerian troops--using a helicopter and boats supplied by Chevron--killed at least four unarmed people and burned two villages to the ground. Chevron had previously asserted that the dismissed claims were fraudulent, and now they're mysteriously gone...

See "Nigerians pull half of claims in Chevron suit" in the SF Chronicle, by Bob Egelko, Chronicle Staff Writer, Wednesday, March 12, 2008.

This article also says Ps lawyers claim the dismissed claims "are still part of a separate lawsuit in San Francisco Superior Court that is scheduled for trial in August."

In a later discussion with two of Ps counsel (Marco Simmons and Rick Hertz), they confirmed this, and claimed that although they had to dismiss these Ps because of a "conflict of interest," they'll certainly use the instances in the State proceedings in an effort to show that Chevron conducted a pattern of illegal actions in Nigeria--by using military police to suppress protests and increase oil profits.

11 March 2008

Ruiz v. Martinez, 2008 U.S. App. LEXIS 5289, 1-2 (5th Cir. 2008)


In holding that plaintiff abandoned any challenge to the district court's dismissal of his ATS claim by failing to raise the issue in his brief, the court affirmed the district court's judgment, and... denied Ps motions for a temporary restraining order (stay of deportation), a transfer or relocation to another facility, and a picture of the district court judge.

1 February 2008

Haji Bismullah v. Gates, 514 F.3d 1291 (D.C. Cir. 2008)


In an addendum, the court regurgitated Judge Randolph's concurrance in Al Odah v. United States, 321 F.3d 1134, 1149-50 (D.C. Cir. 2003):

"The United States or its officers may be sued only if there is a waiver of sovereign immunity. See, e.g., Dep't of Army v. Blue Fox, Inc., 525 U.S. 255 (D.C. Cir. 2003). We have held that the Alien Tort Act, whatever its meaning, does not itself waive sovereign immunity. Industria Panificadora, S.A. v. United States, 957 F.2d 886, 886 (D.C. Cir. 1992) (per curiam); Sanchez-Espinoza, 770 F.2d at 207; see Canadian Transp. Co. v. United States, 663 F.2d 1081, 1092 (D.C. Cir. 1980). The detainees therefore rely on the waiver provision in the Administrative Procedure Act, 5 U.S.C. § 702, which states: "An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity . . . shall not be dismissed . . . on the ground that it is against the United States. . . ."

Although relying on the APA's waiver for agencies, the detainees do not identify which "agency" of the United States they have in mind. They have sued the President in each case, but the President is not an "agency" under the APA and the waiver of sovereign immunity thus does not apply to him. See Franklin v. Massachusetts, 505 U.S. 788, 800-01, 112 S. Ct. 2767, 120 L. Ed. 2d 636 (1992); Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991). This leaves the military. The APA specifically excludes from its definition of "agency" certain functions, among which is "military authority exercised in the field in time of war or in occupied territory." 5 U.S.C. §§ 551(1)(G), 701(b)(1)(G); see id. §§ 553(a)(1) & 554(a)(4), exempting military "functions" from the APA's requirements for rulemaking and adjudication; United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371 (2d Cir. 1968) (Friendly, J.).

The district court ruled, in an alternative holding, that because of the military function exclusion, the APA does not waive sovereign immunity. Rasul v. Bush, 215 F. Supp. 2d 55 (D.D.C. 2002). I believe this is correct. Each of the detainees, according to their pleadings, was taken into custody by American armed forces "in the field in time of war." I believe they remain in custody "in the field in time of war."

It is of no moment that they are now thousands of miles from Afghanistan. Their detention is for a purpose relating to ongoing military operations and they are being held at a military base outside the sovereign territory of the United States. The historical meaning of "in the field" was not restricted to the field of battle. It applied as well to "organized camps stationed in remote places where civil courts did not exist," Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 274 (1960) (Whittaker, J., joined by Stewart, J., concurring in part and dissenting in part). To allow judicial inquiry into military decisions after those captured have been moved to a "safe" location would interfere with military functions in a manner the APA's exclusion meant to forbid. We acknowledged as much in Doe v. Sullivan, 938 F.2d 1370, 1380 (D.C. Cir. 1991), when then-Judge Ruth Bader Ginsburg stated for the court that the APA's military function exclusion applied to cases in which a court was asked to "review military commands made . . . in the aftermath of [] battle." It is also of no moment that the detainees were captured without Congress having declared war against any foreign state. "Time of war," as the APA uses it, is not so confined. The military actions ordered by the President, with the approval of Congress, are continuing; those military actions are part of the war against the al Qaeda terrorist network; and those actions constitute "war," not necessarily as the Constitution uses the word, but as the APA uses it. See Campbell v. Clinton, 203 F.3d 19, 29-30 (D.C. Cir. 2000) (Randolph, J., concurring in the judgment); Mitchell v. Laird, 488 F.2d 611, 613 (D.C. Cir. 1973). The detainees are right not to contest this point. To hold that it is not "war" in the APA sense when the United States commits its armed forces into combat without a formal congressional declaration of war would potentially thrust the judiciary into reviewing military decision-making in places and times the APA excluded from its coverage."

22 February 2008

Rodriguez Licea v. Curacao Drydock Co., 2008 U.S. Dist. LEXIS 13294 (D. Fla. 2008)


Plaintiffs' principal claims are that the Defendant and its government agents and co-conspirators violated the laws of nations by trafficking Ps from Cuba to Curacao and by holding them and forcing them to work there. The main thrust of their action comes under the ATS and federal RICO laws. The only issue before this court was Defendant's motion to dismiss for forum non conveniens.

In declining to dismiss the action, the court said:

"Further, any interest that a forum in Curacao may have is countered by the public interest factors this jurisdiction has in the matter. This case concerns alleged violations of international human rights norms of concern to all nations and that the Alien Tort Statute empowered this Court to address. It concerns an alleged act of international trafficking. It concerns the human rights of people who have been Cuban citizens, an issue of concern to many members of this community. It concerns the foreign policy interests of the United States as expressed in the Cuban Democracy Act of 1992, and the interests of Congress expressed in the RICO statute. All these public interest factors militate in favor of this Court's retention of this matter."

Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co.


Where Vietnamese nationals alleged that manufacturers were liable for violating international law norms prohibiting the use of poisoned weapons and infliction of unnecessary suffering, ATS claims failed because international norms did not prohibit use of materials that were only secondarily, and not intentionally, harmful to humans.