Corrie v. Caterpillar, Inc.

• Citation: 503 F.3d 974
• Decision Date: 17 September 2007
• Docket Number: No. 05-36210.,05-36210.
• Parties: Cynthia CORRIE, on their own behalf and as Personal Representatives of Rachel Corrie and her next of kin, including her siblings; Craig Corrie, on their own behalf and as Personal Representatives of Rachel Corrie and her next of kin, including her siblings; Mahmoud Omar Al Sho'bi; Fathiya Muhammad Sulayman Fayed; Fayez Ali Mohammed Abu Hussein; Majeda Radwan Abu Hussein; Eida Ibrahim Suleiman Khalafallah, Plaintiffs-Appellants, v. CATERPILLAR, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

503 F.3d 974

Cynthia CORRIE, on their own behalf and as Personal Representatives of Rachel Corrie and her next of kin, including her siblings; Craig Corrie, on their own behalf and as Personal Representatives of Rachel Corrie and her next of kin, including her siblings; Mahmoud Omar Al Sho'bi; Fathiya Muhammad Sulayman Fayed; Fayez Ali Mohammed Abu Hussein; Majeda Radwan Abu Hussein; Eida Ibrahim Suleiman Khalafallah, Plaintiffs-Appellants, v. CATERPILLAR, INC., Defendant-Appellee.

No. 05-36210.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 9, 2007.

Filed September 17, 2007.

Gwynne Skinner and Ronald C. Slye, Seattle University, Ronald A. Peterson Law Clinic, Seattle, WA; Maria C. La-Hood and Jennifer Green, Center for Constitutional Rights, New York, NY; and Erwin Chemerinsky (argued), for the plaintiffs-appellants.

Robert G. Abrams (argued), Howrey LLP, Washington, DC; Joanne E. Caruso, Richard J. Burdge, Jr., and David G. Meyer, Howrey LLP, Los Angeles, CA; James L. Magee, Graham & Dunn PLC, Seattle, WA, for the defendant-appellee.

Ronald J. Bettauer, Deputy Legal Adviser, Department of State, Jeffrey Buchwoltz, Acting Assistant Attorney General, John McKay, U.S. Attorney, Douglas N. Letter, Robert M. Loeb (argued), Attorneys, Appellate Staff, Department of Justice, Washington, DC, for amicus curiae the United States.

Ralph G. Steinhardt, George Washington University Law School, Washington, DC, for amicus curiae International Law Scholars.

Marco Simons and Richard L. Herz, Earthrights International, Washington, DC, for amicus curiae Career Foreign Service Diplomats.

Allan Ides, Loyola Law School, Los Angeles, CA, for amicus curiae Professors of Constitutional and International Law.

Terry Collingsworth, for amicus curiae the International Labor Rights Fund.

Tyler R. Giannini, Human Rights Program of Harvard Law School, Cambridge, MA, for amicus curiae Law Professors.

Robin S. Conrad and Amar D. Sarwal, National Chamber Litigation Center, Inc., Washington, DC; Maria Ghazal, Business Roundtable, Washington, DC; Paul R. Friedman, John Townsend Rich, and William F. Sheehan, Goodwin Procter LLP, Washington, DC, for amicus curiae the Chamber of Commerce of the United States of America and Business Roundtable.

Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-05-05192-FDB.

Before: ARTHUR L. ALARCÓN, HAWKINS, and KIM McLANE WARDLAW, Circuit Judges.

WARDLAW, Circuit Judge:

Plaintiffs Cynthia and Craig Corrie, Mahmoud Al Sho'bi, Fathiya Muhammad Sulayman Fayed, Fayez Ali Mohammed Abu Hussein, Majeda Radwan Abu Hussein, and Eida Ibrahim Suleiman Khalafallah filed this action after their family members were killed or injured when the Israeli Defense Forces ("IDF") demolished homes in the Palestinian Territories using bulldozers manufactured by Caterpillar, Inc., a United States corporation. The IDF ordered the bulldozers directly from Caterpillar, but the United States government paid for them. The district court dismissed the action under Federal Rule of Civil Procedure 12(b)(6), finding it lacked jurisdiction because, inter alia, the political question doctrine precludes decision by an Article III court.

Because we agree that plaintiffs' claims present nonjusticiable political questions that deprive the district court of subject matter jurisdiction when construed under Federal Rule of Civil Procedure 12(b)(1), we do not reach the remaining questions presented under state, federal, and international law. Plaintiffs' action cannot proceed because its resolution would require the federal judiciary to ask and answer questions that are committed by the Constitution to the political branches of our government.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. Facts and Background

A. The Allegations in the Complaint

Because this action was dismissed under Federal Rule of Civil Procedure 12(b)(6), we accept all facts alleged in the complaint as true and construe them in the light most favorable to the plaintiffs. Maduka v. Sunrise Hosp., 375 F.3d 909, 911 (9th Cir.2004).

Following the Six Day War in 1967, Israel occupied and took control of the West Bank and Gaza Strip. Caterpillar is the world's leading manufacturer of heavy construction and mining equipment. Among its customers is the IDF, which since 1967 has utilized Caterpillar bulldozers to demolish homes in the Palestinian Territories. According to plaintiffs' complaint, Caterpillar sold the bulldozers to the IDF despite its actual and constructive notice that the IDF would use them to further its home destruction policy in the Palestinian Territories; a policy plaintiffs contend violates international law. Seventeen members of plaintiffs' families — sixteen Palestinians and one American — were killed or injured in the course of the demolitions.

B. Facts Beyond the Complaint¹

The complaint alleges that Caterpillar sold bulldozers to the IDF, but it does not explain how those bulldozers were financed. There is undisputed evidence in the record, however, that the United States government paid for every bulldozer that Caterpillar transferred to the IDF. Caterpillar submitted an affidavit by Frank Weinberg ("Weinberg Declaration"), General Manager of Caterpillar's Defense & Federal Products division, in which Weinberg states that the United States government has approved and financed all contracts between Israel and Caterpillar dating back to at least 1990, and that Caterpillar "does not sell products to the government of Israel in sales that are not approved by the U.S. government."

Appended to the Weinberg Declaration is a copy of a letter from the Defense Security Cooperation Agency ("DSCA"), an arm of the United States Department of Defense, sent in September 2001 to the Israeli government and copied to Caterpillar ("DSCA letter"). The letter grants "[f]unding approval" for the Israeli government's purchase of fifty Caterpillar D9 bulldozers under the Foreign Military Financing program ("FMF"). Under the FMF, foreign governments enter into contracts directly with American defense contractors and then apply to the DSCA for approval of funding on a case-by-case basis.² The DSCA letter also states that the DSCA "find[s] the proposed procurement to be consistent with the purposes of the Arms Export Control Act," 22 U.S.C. §§ 2751 et seq., which authorizes the FMF, see id. § 2763.

Plaintiffs introduced a letter from Matthew Reynolds, the Acting Assistant Secretary of State for Legislative Affairs, indicating that Israel acquired the bulldozers "on a commercial contract basis" financed through the FMF ("Reynolds letter"). At oral argument, plaintiffs did not dispute that the bulldozers were financed under the FMF.

Amicus United States Department of State confirms that "funds requested by the Executive and appropriated by Congress were used by Israel to purchase the equipment in question under the Foreign Military Financing [ ] program."³

C. District Court Proceedings

Plaintiffs filed an action in the district court alleging seven claims against Caterpillar for (1) war crimes; (2) extrajudicial killing under the Torture Victim Protection Act⁴; (3) cruel, inhuman, or degrading treatment or punishment; (4) violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq.; (5) wrongful death; (6) public nuisance; and (7) negligent entrustment. The gravamen of each claim is that Caterpillar provided the IDF with equipment it knew would be used in violation of international law, and thus aided and abetted those violations. Plaintiffs seek compensatory and punitive damages; declaratory relief; an injunction directing Caterpillar to cease providing equipment to the IDF so long as its illegal practices continue; and costs and attorneys' fees.

Plaintiffs contend we have jurisdiction over the Palestinian plaintiffs' claims under the Alien Tort Statute⁵ ("ATS"), 28 U.S.C. § 1350, and over the claims of the relatives of Rachel Corrie, who are American, under the general federal question jurisdiction statute, 28 U.S.C. § 1331.

Caterpillar moved to dismiss the action under Rule 12(b)(6) for failure to state a claim and under the act of state and political question doctrines. The district court granted the motion in a published opinion. 403 F.Supp.2d 1019 (W.D.Wash.2005). It held that both the act of state and the political question doctrines precluded it from reaching the merits of the claims. Alternatively, it held that all of plaintiffs' claims failed on the merits.

Plaintiffs timely appeal.

II. Standard of Review

We review a district court's dismissal for failure to state a claim or for lack of subject matter jurisdiction de novo. Arakaki v. Lingle, 477 F.3d 1048, 1056 (9th Cir.2007). We may affirm on any basis fairly supported by the record. United States v. Washington, 969 F.2d 752, 755 (9th Cir.1992).

III. Political Question Doctrine

We face a threshold procedural hurdle concerning the scope of what we may consider in deciding this appeal. Our political question analysis calls on us to examine the United States government's role in financing the IDF's purchases of Caterpillar bulldozers. But determining that role requires us to look beyond the face of the plaintiffs' complaint and to other evidence in the record. We first consider, therefore, whether the doctrine's limitation on federal courts is jurisdictional, or merely prudential. Only if the doctrine is jurisdictional may we look beyond the facts alleged in the complaint to decide whether this case presents a political question. Because we hold that the political question doctrine is jurisdictional in nature, we proceed, taking into consideration facts beyond the complaint.

A.

In general, "[t]he focus of any Rule 12(b)(6) dismissal — both in the trial court and on appeal — is the complaint." Schneider v. Cal. Dep't of Corrections, ...