The
problem with this reasoning is that neither Nelson, nor other case law,
nor the legislative history of § 1605(a)(2) suggest that a foreign
state’s conduct “in connection with a commercial activity”
must itself be a commercial activity to fall within the third exception
to foreign sovereign immunity. In other words, there is no support for
the proposition that the foreign state’s conduct “in connection
with a commercial activity” must be an “exercise[ ] [of]
only those powers that can also be exercised by private citizens”
to fall within the third exception in § 1605(a)(2). Nelson,
507 U.S. at 360. Rather, as the Supreme Court observed in Nelson,
“Congress manifestly understood there to be a difference between
a suit ‘based upon’ commercial activity and one ‘based
upon’ acts performed ‘in connection with’ such activity.” Id. at 358.
The
District Court looked for support for its contrary conclusion in a different
passage in Nelson, where the Supreme Court held that even if
a foreign government often used detention and torture to resolve commercial
disputes, this would “not alter the fact that the powers allegedly
abused where those of police and penal officers.” Id. at
363. In that passage, however, Nelson held only that the
use of detention and torture to resolve commercial disputes would not
qualify as a commercial activity and, therefore, fall within
the first exception to foreign sovereign immunity, which is not
at issue here. See 507 U.S. at 356. But Nelson did not hold that such use of detention and torture also would not qualify as
an act performed in connection with a commercial activity and,
therefore, fall within the third exception to foreign sovereign
immunity, which is at issue here.34
C.
Plaintiffs’ claims against Unocal are not barred by the Act of
State Doctrine.
Unocal
also argues that Plaintiffs’ claims against it are barred by the
“act of state” doctrine. The act of state doctrine is a non-jurisdictional,
prudential doctrine based on the notion that “the courts of one
country will not sit in judgment on the acts of the government of another,
done within its own territory.” Underhill v. Hernandez,
168 U.S. 250, 252 (1897). “Act of state issues only arise when
a court must decide — that is, when the outcome of the case
turns upon — the effect of official action by a foreign sovereign.” W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int’l,
493 U.S. 400, 406 (1990). As long as this requirement is met, the act
of state doctrine can be invoked by private parties such as Unocal. See, e.g., Credit Suisse v. United States Dist. Court, 130 F.3d
1342, 1348 (9th Cir. 1997). In the present case, an act of state issue
arises because the court must decide that the conduct by the Myanmar
Military violated international law in order to hold Unocal liable for
aiding and abetting that conduct. We review the applicability of the
act of state doctrine de novo. See Liu v. Republic of China,
892 F.2d 1419, 1424 (9th Cir. 1989).
The
Second Circuit has said that “it would be a rare case in which
the act of state doctrine precluded suit under [the ATCA].” Kadic,
70 F.3d at 250. We find that the present case is not that rare case,
and that the act of state doctrine does not preclude suit under the
ATCA here.
In Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), the
Supreme Court developed a three-factor balancing test to determine whether
the act of state doctrine should apply:
[1]
[T]he greater the degree of codification or consensus concerning a
particular area of international law, the more appropriate it is for
the judiciary to render decisions regarding it . . . . [2] [T]he less
important the implications of an issue are for our foreign relations,
the weaker the justification for exclusivity in the political branches.
[3] The balance of relevant considerations may also be shifted if
the government which perpetrated the challenged act of state is no
longer in existence . . . .”
Id. at 428. We have added a fourth factor to this test: [4] “[W]e must
[also] consider . . . whether the foreign state was acting in the public
interest.” Liu, 892 F.2d at 1432. With the exception of
the third factor, all of these factors weigh against application of
the act of state doctrine in this case.
Regarding
the first factor — international consensus — we have recognized
that murder, torture, and slavery are jus cogens violations,
i.e., violations of norms that are binding on nations even if they do
not agree to them. See Matta-Ballesteros, 71 F.3d at 764 n. 5; Siderman, 965 F.2d at 714-15. As discussed supra in section
II.A.1., rape can be a form of torture and thus also a jus cogens violation. Similarly, as discussed supra in section II.A.2.a,
forced labor is a modern form of slavery and thus likewise a jus
cogens violation. Accordingly, all torts alleged in the present
case are jus cogens violations. Because jus cogens violations
are, by definition, internationally denounced, there is a high degree
of international consensus against them, which severely undermines Unocal’s
argument that the alleged acts by the Myanmar Military and Myanmar Oil
should be treated as acts of state.
Regarding
the second factor — implications for our foreign relations —
the coordinate branches of our government have already denounced Myanmar’s
human rights abuses and imposed sanctions. It is also worth noting that
in 1997, the State Department advised the District Court that “at
this time adjudication of the claims based on allegations of torture
and slavery would not prejudice or impede the conduct of U.S. foreign
relations with the current government of Burma.” Roe I,
176 F.R.D. at 362. This statement of interest at the dismissal stage
is not conclusive at this later stage, especially in light of the fact
that “[t]he Executive Branch . . . cannot by simple stipulation
change a political question into a cognizable claim.” First
Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 788-89
(1972) (Brennan, J., dissenting). But the statement is also not irrelevant. See Banco Nacional de Cuba v. Chemical Bank N.Y. Trust Co., 594
F. Supp. 1553, 1563 (S.D.N.Y. 1984) (stating that courts “may,
as a matter of discretion, accept the views of the State Department”).
We agree with the District Court’s evaluation that “[g]iven
the circumstances of the instant case, and particularly the Statement
of Interest of the United States, it is hard to imagine how judicial
consideration of the matter will so substantially exacerbate relations
with [the Myanmar Military] as to cause hostile confrontations.” Roe I 176 F.R.D. at 354 n.29 (internal quotation marks omitted).
Regarding
the third factor — continued existence of the accused government
— the Myanmar Military is still the government of Myanmar, although
it changed its full name from State Law and Order Restoration Council
to State Peace and Development Council following the events at issue
here. That a condemnation of the alleged acts may offend the current
government of Myanmar is the only factor that weighs in favor of applying
the act of state doctrine.
Finally,
regarding the fourth factor that we have imposed — public interest
— it would be difficult to contend that the Myanmar Military and
Myanmar Oil’s alleged violations of international human rights
were “in the public interest.” Indeed, the District Court
found at the summary judgment stage that “there is an issue of
fact as to whether the forced labor was used to benefit the Project
as opposed to the pub-lic’s welfare.” Doe/Roe II, 110
F. Supp. 2d at 1308. This genuine issue of material fact precludes summary
judgment in favor of Unocal on this basis.
Because
the four factor balancing test weighs against applying the act of state
doctrine, we find that Plaintiffs’ claims are not barred by this
doctrine.
D.
The District Court lacked extraterritorial subject matter jurisdiction
over the Doe-Plaintiffs’ RICO claim against Unocal.
The Doe-Plaintiffs allege that Unocal’s conduct violated the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §
1961 et seq. RICO makes it unlawful, inter alia, “for
any person employed by or associated with any enterprise engaged in,
or the activities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct of such
enterprise’s affairs through a pattern of racketeering activity,”
or to conspire in such conduct. 18 U.S.C. § 1962(c),(d). “Racketeering
activity” is partially defined as any act which is indictable under
any one of a number of listed provisions of Title 18 of the United States
Code. See 18 U.S.C. § 1961(1)(B). The Doe-Plaintiffs allege
that Unocal engaged and conspired in a “pattern of extortion”
that is indictable under the Hobbs Act, 18 U.S.C. § 1951, one of
the provisions enumerated in RICO’s definition of “racketeering
activity.” The Hobbs Act provides in relevant part:
Whoever
in any way or degree obstructs, delays, or affects commerce or the
movement of any article or commodity in commerce, by robbery or extortion[,]
or attempts or conspires so to do, or commits or threatens physical
violence to any person or property in furtherance of a plan or purpose
to do anything in violation of this section[,] shall be fined under
this title or imprisoned not more than twenty years, or both.
18
U.S.C. § 1951(a).
The
District Court granted Unocal’s motion for summary judgment on
the Doe-Plaintiffs’ RICO claim for lack of subject matter
jurisdiction. We review the existence of subject matter jurisdiction
under RICO de novo. See United States v. Juvenile Male,
118 F.3d 1344, 1346 (9th Cir. 1997).
The Doe-Plaintiffs base their underlying Hobbs Act claim on the alleged
“extortion” of their labor. The Hobbs Act defines “extortion”
as the “obtaining of property from another, with his consent, induced
by wrongful use of actual or threatened force, violence, or fear, or
under color of official right.” 18 U.S.C. § 1951(b)(2). We
have observed that “[t]he concept of property under the Hobbs Act
has not been limited to physical or tangible ‘things.’ ” United States v. Zemek, 634 F.2d 1159, 1174 (9th Cir. 1980).
Thus we have recognized the “right . . . to solicit business free
from wrongful coercion,” id., and the “right to make
personal and business decisions about the purchase of life insurance
on [one’s] own life free of threats,” United States v.
Hoelker, 765 F.2d 1422, 1425 (9th Cir. 1985), as property rights
that are protected by the Hobbs Act. More generally, the Second Circuit
has held that “[t]he concept of property under the Hobbs Act .
. . includes, in a broad sense, any valuable right considered as a source
or element of wealth.” United States v. Tropiano, 418 F.2d
1069, 1075 (2d Cir. 1969). The right to make personal and business decisions
about one’s own labor also fits this definition of “property.”
Forced labor allegations can, therefore, form the basis of a Hobbs Act
claim, and this claim can, in turn, form the basis of a RICO claim.
The
District Court nevertheless correctly granted summary judgment in favor
of Unocal on the Doe-Plaintiffs’ RICO claim for lack of
extraterritorial subject matter jurisdiction. We agree with the Second
Circuit that for RICO to apply extraterritorially, the claim must meet
either the “conduct” or the “effect” test that courts
have developed to determine jurisdiction in securities fraud cases. See North South Fin. Corp. v. Al-Turki, 100 F.3d 1046, 1051 (2d
Cir. 1996); see also Butte Mining PLC v. Smith, 76 F.3d 287,
291 (9th Cir. 1996) (holding with respect to extraterritorial application
of RICO that “[o]nce the securities fraud claim was dismissed [for
lack of extraterritorial subject matter jurisdiction under the “conduct”
or the “effect” test,] the wire and mail fraud and RICO claims
that related to this fraud had to be dismissed as well”). The Doe-Plaintiffs
do not challenge that they must meet one of these two test to succeed
on their RICO claim. Instead, they challenge the District Court’s
conclusion that they cannot meet either test.
Under
the “conduct” test, a district court has jurisdiction over
securities fraud suits by foreigners who have lost money through sales
abroad “[o]nly where conduct ‘within the United States directly
caused’ the loss.” Psimenos v. E.F. Hutton & Co.,
722 F.2d 1041, 1046 (2d Cir. 1983) (emphasis added) (quoting Bersch
v. Drexel Firestone, Inc., 519 F.2d 974, 993 (2d Cir. 1975)). “Mere
preparatory activities, and conduct far removed from the consummation
of the fraud, will not suffice to establish jurisdiction.” Id. (emphasis added).
Under
the “effects” test, “[t]he anti-fraud laws of the United
States may be given extraterritorial reach whenever a predominantly
foreign transaction has substantial effects within the United States.” Consol. Gold Fields PLC v. Minorco, S.A., 871 F.2d 252, 261-62
(2d Cir. 1989). This test is met where the domestic effect is “a direct and foreseeable result of the conduct outside of
the United States.” Id. at 262 (emphasis added). By contrast,
“courts have been reluctant to apply our laws to transactions that
have only remote and indirect effects in the United States.” Id. (emphasis added).
The
“conduct” and the “effect” test appear to be two
sides of one coin. The “conduct” test establishes jurisdiction
for domestic conduct that directly causes foreign loss or injury.
Conversely, the “effects” test establishes jurisdiction for foreign conduct that directly causes domestic loss or injury.
The conduct involved in this case does not meet either of these two
tests.
The Doe-Plaintiffs allege that in furtherance of an unlawful conspiracy,
Unocal transferred significant financial and technical support for Project
activity from the United States to Myanmar. Under the “conduct”
test, the question is whether this transfer from the United States “directly
caused” loss or injury in Myanmar. We conclude that it did not.
In Butte Mining, the plaintiffs alleged that the defendants used
domestic mail and wire “to further” a foreign securities fraud.
76 F.3d at 291. In that case, we found “no reason to extend the
jurisdictional scope of RICO to make criminal the use of the mail and
wire in the United States as part of an alleged fraud outside the United
States.” Id. Similarly, in the present case, we find no
reason to extend the jurisdictional scope of RICO to create civil liability
for the transfer of monies and technical support from the United States
as part of an alleged “pattern of extortion” outside the United
States. We therefore hold that the Doe-Plaintiffs’ allegations
do not satisfy the “conduct” test.
Nor
have the Doe Plaintiffs pointed to any evidence that Unocal’s
alleged conduct in Myanmar “directly caused” loss or injury
in the United States and thus satisfied the “effects” test.
“If the party moving for summary judgment meets its initial burden
of identifying for the court the portions of the materials on file that
it believes demonstrate the absence of any genuine issue of material
fact, . . . the nonmoving party may not rely on the mere allegations
in the pleadings in order to preclude summary judgment,” but instead
“must set forth . . . ‘specific facts showing that
there is a genuine issue for trial.’ ” T.W. Elec. Serv.,
Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th
Cir. 1987) (quoting Fed. R. Civ. P. 56(e)). The Doe-Plaintiffs
assert in their Opening Brief that Unocal’s actions in Myanmar
gave Unocal an “unfair advantage over competitors” in the
United States. The Doe-Plaintiffs, however, do not point to any
“specific facts” in the record to support these conclusory
allegations, as they are required to do by Fed. R. Civ. P. 56(e). These
“mere allegations” are not enough to survive Unocal’s
motion for summary judgment on the Doe-Plaintiffs’ RICO
claim. We therefore hold that the Doe-Plaintiffs’ allegations
also do not meet the “effects” test.
Part
7
34.
For the same reason, and contrary to the District Court’s conclusion, Nelson also does not “undermine” our holding in Siderman,
965 F.2d 699, another case involving the third — rather than the
first — exception in § 1605(a)(2).
