Doe I v. Unocal Corp., No. 00-56603.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Pregerson
• Citation: 395 F.3d 932
• Parties: John DOE I, individually & as Administrator of the Estate of his deceased child Baby Doe I, & on behalf of all others similarly situated; Jane Doe I, on behalf of herself, as Administratrix of the Estate of her deceased child Baby Doe I, & on behalf of all others similarly situated; John Doe II; John Doe III; John Doe IV; John Doe V; Jane Doe II; Jane Doe III; John Doe VI; John Doe VII; John Doe VIII; John Doe IX; John Doe X; John Doe XI, on behalf of themselves & all others similarly situated & Louisa Benson on behalf of herself & the general public, Plaintiffs-Appellants, v. UNOCAL CORPORATION, a California Corporation; Total S.A., a Foreign Corporation; John Imle, an individual; Roger C. Beach, an individual, Defendants-Appellees. John Roe III; John Roe VII; John Roe VIII; John Roe X, Plaintiffs-Appellants, v. Unocal Corporation; Union Oil Company of California, Defendants-Appellees.
• Decision Date: 18 September 2002
• Docket Number: No. 00-56628.,No. 00-57195.,No. 00-57197.,No. 00-56603.

395 F.3d 932 John DOE I, individually & as Administrator of the Estate of his deceased child Baby Doe I, & on behalf of all others similarly situated; Jane Doe I, on behalf of herself, as Administratrix of the Estate of her deceased child Baby Doe I, & on behalf of all others similarly situated; John Doe II; John Doe III; John Doe IV; John Doe V; Jane Doe II; Jane Doe III; John Doe VI; John Doe VII; John Doe VIII; John Doe IX; John Doe X; John Doe

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XI, on behalf of themselves & all others similarly situated & Louisa Benson on behalf of herself & the general public, Plaintiffs-Appellants,
v.
UNOCAL CORPORATION, a California Corporation; Total S.A., a Foreign Corporation; John Imle, an individual; Roger C. Beach, an individual, Defendants-Appellees.
John Roe III; John Roe VII; John Roe VIII; John Roe X, Plaintiffs-Appellants,
v.
Unocal Corporation; Union Oil Company of California, Defendants-Appellees. No. 00-56603. No. 00-57197. No. 00-56628. No. 00-57195. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 3, 2001. Filed September 18, 2002.

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Paul L. Hoffman, Schonbrun, Desimome, Seplow, Harris & Hoffman LLP, Venice, CA; Dan Stormer and Anne Richardson, Hadsell & Stormer, Inc., Pasadena, CA; William Goodman, Jennifer M. Green, and Beth Stephens, Center for Constitutional Rights, New York, NY; Katharine J. Redford and Richard Herz, Earthrights International, Washington, DC; Judith Brown Chomsky, Elkins Park, PA; Julie Shapiro, Tacoma, WA; Dilan Esper, Stein & Flugge, LLP, Los Angeles, CA, for plaintiffs-appellants Doe.

Terrence P. Collingsworth and Natacha Thys, International Labor Rights Fund, Washington, DC; Christopher E. Krafchak and Kenderton S. Lynch III, Krafchak & Associates, Los Angeles, CA; Martin J. D'Urso, Hilary Cohen, and Nadia Ezzelarab, Kohn, Swift & Graf, P.C., Philadelphia, PA; Christobal Bonifaz and John C. Bonifaz, Law Offices of Christobal Bonifaz, Amherst, MA, for plaintiffs-appellants Roe.

Edwin V. Woodsome, Jr., D. Barclay Edmundson, David G. Meyer, and Keri R. Curtis, Howrey Simon Arnold & White, LLP, Los Angeles, CA; Jerrold J. Ganzfried, Howrey Simon Arnold & White, LLP, Washington, DC, for defendants-appellees Unocal Corporation, Union Oil Company of California, John Imle, and Roger C. Beach.

William J. Aceves, California Western School of Law, San Diego, California, for Amici Curiae International Human Rights Organizations and International Law and Human Rights Law Scholars.

Appeal from the United States District Court for the Central District of California; Richard A. Paez and Ronald S.W. Lew, District Judges, Presiding¹. D.C. Nos. CV-96-06959-RSWL, CV-96-06112-RSWL.

Before PREGERSON, REINHARDT and TASHIMA, Circuit Judges.

Opinion by Judge PREGERSON; Concurrence by Judge REINHARDT

PREGERSON, Circuit Judge.

This case involves human rights violations that allegedly occurred in Myanmar, formerly known as Burma. Villagers from the Tenasserim region in Myanmar allege that the Defendants directly or indirectly subjected the villagers to forced labor, murder, rape, and torture when the Defendants constructed a gas pipeline through the Tenasserim region. The villagers base their claims on the Alien Tort Claims Act, 28 U.S.C. § 1350, and the Racketeer Influenced

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and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq., as well as state law.

The District Court, through dismissal and summary judgment, resolved all of Plaintiffs' federal claims in favor of the Defendants. For the following reasons, we reverse in part and affirm in part the District Court's rulings.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Unocal's Investment in a Natural Gas Project in Myanmar.

Burma has been ruled by a military government since 1958. In 1988, a new military government, Defendant-Appellee State Law and Order Restoration Council ("the Myanmar Military"), took control and renamed the country Myanmar. The Myanmar Military established a state owned company, Defendant-Appellee Myanmar Oil and Gas Enterprise ("Myanmar Oil"), to produce and sell the nation's oil and gas resources.

In 1992, Myanmar Oil licensed the French oil company Total S.A. ("Total") to produce, transport, and sell natural gas from deposits in the Yadana Field off the coast of Myanmar ("the Project"). Total set up a subsidiary, Total Myanmar Exploration and Production ("Total Myanmar"), for this purpose. The Project consisted of a Gas Production Joint Venture, which would extract the natural gas out of the Yadana Field, and a Gas Transportation Company, which would construct and operate a pipeline to transport the natural gas from the coast of Myanmar through the interior of the country to Thailand.

Also in 1992, Defendant-Appellant Unocal Corporation and its wholly owned subsidiary Defendant-Appellant Union Oil Company of California, collectively referred to below as "Unocal," acquired a 28% interest in the Project from Total. Unocal set up a wholly owned subsidiary, the Unocal Myanmar Offshore Company ("the Unocal Offshore Co."), to hold Unocal's 28% interest in the Gas Production Joint Venture half of the Project.² Similarly, Unocal set up another wholly owned subsidiary, the Unocal International Pipeline Corporation ("the Unocal Pipeline Corp."), to hold Unocal's 28% interest in the Gas Transportation Company half of the Project.³ Myanmar Oil and a Thai government entity, the Petroleum Authority of Thailand Exploration and Production, also acquired interests in the Project. Total Myanmar was appointed Operator of the Gas Production Joint Venture and the Gas Transportation Company. As the Operator, Total Myanmar was responsible, inter alia, for "determin[ing] ... the selection of ... employees [and] the hours of work and the compensation to be paid to all ... employees" in connection with the Project.

B. Unocal's Knowledge that the Myanmar Military Was Providing Security and Other Services for the Project.

It is undisputed that the Myanmar Military provided security and other services for the Project, and that Unocal knew

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about this. The pipeline was to run through Myanmar's rural Tenasserim region. The Myanmar Military increased its presence in the pipeline region to provide security and other services for the Project.⁴ A Unocal memorandum documenting Unocal's meetings with Total on March 1 and 2, 1995 reflects Unocal's understanding that "[f]our battalions of 600 men each will protect the [pipeline] corridor" and "[f]ifty soldiers will be assigned to guard each survey team." A former soldier in one of these battalions testified at his deposition that his battalion had been formed in 1996 specifically for this purpose. In addition, the Military built helipads and cleared roads along the proposed pipeline route for the benefit of the Project.

There is also evidence sufficient to raise a genuine issue of material fact whether the Project hired the Myanmar Military, through Myanmar Oil, to provide these services, and whether Unocal knew about this. A Production Sharing Contract, entered into by Total Myanmar and Myanmar Oil before Unocal acquired an interest in the Project, provided that "[Myanmar Oil] shall ... supply[ ] or mak[e] available ... security protection ... as may be requested by [Total Myanmar and its assigns]," such as Unocal. Unocal was aware of this agreement. Thus, a May 10, 1995 Unocal "briefing document" states that "[a]ccording to our contract, the government of Myanmar is responsible for protecting the pipeline." (Emphasis added.) Similarly, in May 1995, a cable from the U.S. Embassy in Rangoon, Myanmar, reported that Unocal On-Site Representative Joel Robinson ("Unocal Representative Robinson" or "Robinson") "stated forthrightly that the companies have hired the Burmese military to provide security for the project." (Emphasis added.)

Unocal disputes that the Project hired the Myanmar Military or, at the least, that Unocal knew about this. For example, Unocal points out that the Production Sharing Contract quoted in the previous paragraph covered only the off-shore Gas Production Joint Venture but not the Gas Transportation Company and the construction of the pipeline which gave rise to the alleged human rights violations. Moreover, Unocal President John Imle ("Unocal President Imle" or "Imle") stated at his deposition that he knew of "no ... contractual obligation" requiring the Myanmar Military to provide security for the pipeline construction. Likewise, Unocal CEO Roger Beach ("Unocal CEO Beach" or "Beach") stated at his deposition that he also did not know "whether or not Myanmar had a contractual obligation to provide ... security." Beach further stated that he was not aware of "any support whatsoever of the military[,] ... either physical or monetary." These assertions by Unocal President Imle and Unocal CEO Beach are called into question by a briefing book which Total prepared for them on the occasion of their April 1996 visit to the Project. The briefing book lists the "numbers of villagers" working as "local helpers hired by battalions," the monthly "amount paid in Kyats" (the currency of Myanmar) to "Project Helpers," and the "amount in Kyats" expended by the Project on "food rations (Army + Villages)."⁵

Furthermore, there is evidence sufficient to raise a genuine issue of material

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fact whether the Project directed the Myanmar Military in these activities, at least to a degree, and whether Unocal was involved in this. In May 1995, a cable from the U.S. Embassy in Rangoon reported:

[Unocal Representative] Robinson indicated ... Total/Unocal uses [aerial photos, precision surveys, and topography maps] to show the [Myanmar] military where they need helipads built and facilities secured.... Total's security officials meet with military counterparts to inform them of the next day's activities so that soldiers can ensure the area is secure and guard...