Should federal courts dismiss cases whenever foreign governments say they should? Should they give more weight to the judicial systems of foreign countries than the courts of a U.S. state?
The courts have already answered these questions: in both cases, no. Federal courts don’t do the bidding of foreign governments, or give them more deference than U.S. states. But a recent decision from the Ninth Circuit Court of Appeals upends these rules, dismissing a human rights case against U.S. companies simply because the Colombian government felt like the case should be heard there instead.
The doctrine the court used, known as “international comity,” is usually only invoked when the same case has already been filed, or litigated, in a foreign country; but no such case against the companies has ever been brought in Colombia. We filed an amicus brief in support of the plaintiff’s petition to have the case reheard en banc, or in front of a panel of all Nine Circuit Court judges.
Seventeen people died when the Colombian military bombed the village of Santo Domingo, Colombia, in 1998. Luis Galvis Mujica, a surviving relative of three deceased villagers, sued Occidental Petroleum (Oxy) in U.S. federal court for their complicity in extrajudicial killing, torture, crimes against humanity and war crimes. The plaintiffs claim that in order to secure Oxy’s pipeline in Caño Limón, both Oxy and its security contractor Airscan, Inc, helped the Colombian Air Force conduct an aerial bombing attack on the village. Oxy and Airscan are both U.S. corporations. The plaintiffs also filed against the Colombian government and a few members of the Colombian Air Force in Colombian courts.
Galvis Mujica began legal proceedings against Oxy over ten years ago in a California district court under the Alien Tort Statute (ATS) and California tort law. A three-judge panel from the Ninth Circuit issued the latest opinion for this case in November 2014. The court dismissed the ATS claims because they did not sufficiently “touch and concern” the U.S. In other words, the panel incorrectly believes that the ATS requires U.S. based conduct that furthers a particular harm that occurs abroad. According to the panel, the plaintiffs did not sufficiently claim that any of Oxy’s conduct concerns the U.S, as the tragic events allegedly occurred entirely abroad in Colombia. The panel then inexplicably dismissed the California tort claims out of deference to prior Colombian proceedings which the panel believed was adequate for the victims. This type of deference is known as international comity. Plaintiffs immediately filed a petition for rehearing.
ERI’s amicus brief, filed in support of the plaintiffs’ petition, demonstrates the case should be heard again, because the panel of judges used an incorrect interpretation of the of international comity doctrine. It shows their interpretation of the international comity contradicts precedents set by both the Supreme Court and Ninth Circuit Court.
This precedents obligates the federal court to exercise its jurisdiction over the case.
The panel has paved a dangerous path for courts to dismiss any case whenever the U.S. and/or a foreign country express preference for the case to be heard abroad. Further, the panel has thrown out a U.S. court’s responsibility to consider a claim against a U.S. corporation even if a foreign related claim is not against that corporation. This is a tragedy for Galvis Mujica and the other relatives of the bombing victims because Oxy will not have to face accountability for its actions.
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