Los Angeles-based Occidental Petroleum (Oxy) has been one of the biggest oil producers in Latin America, and it is currently involved in oil production in Colombia, among other places. On December 13, 1998, the Colombian military bombed the village of Santo Domingo, guided by an airplane provided by Oxy and piloted by its security contractor, Airscan. According to the plaintiffs, Oxy instigated the raid in a meeting with the military at its own offices. The bombing killed seventeen people, including three family members of Luis Galvis Mujica, who brought a lawsuit under the Alien Tort Statute and state tort law against Oxy and Airscan in California for their role in the bombings.
In 2005, the district court dismissed the case. The court found that the Alien Tort Statute claims were “political questions” that should not be considered by the court system, and that the state-law claims were precluded because they interfered with the federal government’s foreign affairs powers. EarthRights International filed an amicus brief with the court of appeals to challenge the court’s unprecedented view that any state-law claims that might have an effect on foreign policy were automatically preempted by the federal government’s role in foreign affairs.
Instead of deciding this issue, the Ninth Circuit Court of Appeals sent the case back to the district court in 2009, to evaluate whether or not the plaintiffs should have exhausted all their legal options in the Colombian courts before coming to the U.S. The district court sided with the plaintiffs on this question and sent the case back to the appellate court to review the remaining issues from the original dismissal, and in 2011 ERI filed a new updated amicus brief on the preemption issue.
In its updated brief, ERI argued that unilateral declarations of foreign policy by any executive official – up to and including the President – cannot displace state laws, unless they are authorized by the Constitution, a ratified treaty, a statute, or a longstanding executive practice to which Congress has customarily acquiesced. ERI also argued that application of state tort laws would not conflict with federal foreign policy, and that California had strong interests in applying its laws in this case which should have been taken into account by the district court.
In November 2014, the court of appeals affirmed dismissal of the case. The court did not discuss the “political question” and foreign affairs issues the district court had noted. Instead, the appellate court found that the Alien Tort Statute claims must be dismissed based on the Supreme Court decision Kiobel v. Shell, because the plaintiffs did not sufficiently allege that any conduct related to the Santo Domingo bombing occurred in the U.S. The court also dismissed state tort claims based on the doctrine of “international comity,” which is a choice to defer to the Colombian government and its judicial system. Colombia had concluded criminal proceedings against three members of the military involved with the bombing, and administrative proceedings against the Colombian government for its responsibility.
In January 2015, the plaintiffs filed a petition for rehearing in the Ninth Circuit to challenge the court’s improper standards for Alien Tort Statute admissibility and the court’s unprecedented deference to the Colombian forum. ERI filed a new amicus brief to support the petition for rehearing. Focusing on the deference to the Colombian forum issue which conflicts with the laws of every other Circuit, ERI argued that federal courts are obligated to exercise their jurisdiction. Courts can only withhold jurisdiction due to “international comity” if there are pending, parallel claims in a foreign court and exceptional circumstances. ERI also argued that the court improperly gave too much weight to prior U.S. and Colombian government statements, which were filed nearly a decade ago and before the Colombian hearings ended. The court’s ruling risks dismissal of properly filed federal cases whenever a foreign country and/or the U.S express preference for a foreign forum.