PER CURIAM:
Family members of three union leaders killed in Colombia in August 2004 by members of the Colombian National Army's ("CNA") 18th Brigade brought this lawsuit in 2011 in Los Angeles, California, against Occidental Petroleum Corporation ("Occidental"), a Delaware corporation with headquarters in Los Angeles. Plaintiffs' complaint contains ten causes of action, three under 28 U.S.C. § 1350, known as the Alien Tort Statute, and the rest under California tort law. As correctly summarized by the district court, Plaintiffs contend that "Occidental should be liable for the 18th Brigade's alleged war crimes, crimes against humanity, and assorted torts arising out of the 18th Brigade's murder of the three union leaders." Plaintiffs' theory is that Occidental provided funding to the 18th Brigade, which gave Occidental operational control over the 18th Brigade, knowing full well that the 18th Brigade was committing murders and other human rights abuses. The district court dismissed the complaint pursuant to Fed.R.Civ.P. 12(b)(1) on the ground that it raised nonjusticiable political questions. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
This case has its genesis in a complex internal armed conflict that Colombia, often with the United States' assistance, has struggled with for decades. Since the 1960s, leftist guerrilla groups such as the Revolutionary Armed Forces of Colombia (las Fuerzas Armadas Revolucionarias de Colombia, or the "FARC") and National Liberation Army (el Ejército de Liberación Nacional, or the "ELN") have fought to overpower the Colombian government, often resorting to drug trafficking and kidnaping to fund their efforts. The violence in Colombia peaked in the late 1990s, and, in 1997, the U.S. Department of State designated both the FARC and ELN as foreign terrorist organizations. In 2002, Colombian President Álvaro Uribe, with the United States' backing, militarized
Occidental de Colombia, Inc. ("OxyCol"), a Colombian subsidiary of Occidental, and Ecopetrol, Colombia's state-owned oil company, began oil exploration efforts in the Arauca region of northeast Colombia in the 1980s. They discovered one of the largest oil fields in the country, and began extracting oil in 1986. Together, OxyCol and Ecopetrol built the Caño Limón pipeline (the "Pipeline") to transport the oil to the coast. Ecopetrol, OxyCol, and a Spanish company, Repsol, own the oilfield and Pipeline, and OxyCol operates the Pipeline.
The Pipeline begins in the Arauca region near the border with Venezuela and ends at the Carribean port of Coveñas. The first 110 miles of the Pipeline cut through especially volatile guerrilla territory. The guerrillas targeted the Pipeline to sabotage the Colombian economy and protest the exploitation of one of Colombia's most lucrative resources. Plaintiffs allege that OxyCol paid millions of dollars in "war taxes" to the ELN and FARC, starting in the 1980s and continuing through at least 2000, so that it could operate the Pipeline without interference. After the United States declared the ELN and FARC terrorist organizations in 1997, these payments became illegal.
Guerrilla attacks on the Pipeline continued to increase into the early 2000s, with a high of 170 attacks in 2001. In 2002, because of Colombia's inability to secure the Pipeline on its own and the importance of the Pipeline to United States energy security, the United States created a $99 million aid program to help secure the Pipeline. There can be no doubt that funding, training and equipping the 18th Brigade became an important component of that program. On April 10, 2002, the State Department's Undersecretary for Public Affairs testified before a Subcommittee of the Committee of Appropriations of the House of Representatives in connection with an appropriation of funds for fiscal year 2003. His oral testimony and a written statement included the following:
Foreign Operations, Export Financing, and Related Programs Appropriations for 2003: Hearing Before the Subcomm. on Foreign Operations, Export Financing, and Related Programs of the Comm. on Appropriations, 107th Cong. 276-78, 290 (2002).
An assistant secretary of defense for international security affairs then provided the Subcommittee with the Defense Department's perspective on the United States' involvement in Colombia, noting:
Id. at 303-04. In addition, the acting commander in chief of the United States Southern Command provided the Subcommittee with a written statement on the appropriations, observing:
Id. at 344-45.
In 2003, the United States and Colombian governments formalized a program and coordinated security strategy in a signed memorandum of agreement. The government-to-government program provided both lethal and non-lethal support to the 18th Brigade, including helicopters, equipment, logistical and infrastructure support, and training. The Narcotics Affairs Section and Military Group of the U.S. Embassy in Bogotá administered the aid program day-to-day.
To implement the policy of assisting Colombia, Congress appropriated $71 million in 2002 and 2003 to buy helicopters and related support for the 18th Brigade, and $28 million to provide the 18th Brigade with equipment and training by U.S. Special Forces. The training by the U.S. Special
In May 2004, Ecopetrol and the Colombian Ministry of National Defense entered into an Inter-Institutional Cooperation Agreement (the "Agreement"). Neither Occidental nor OxyCol were signatories to this agreement. In it, Ecopetrol agreed to provide the Ministry with financial support in exchange for the Ministry's increased protection of the Pipeline. Ecopetrol agreed to provide approximately $6.3 million worth of assistance from its joint account with OxyCol. The support Ecopetrol pledged to the Colombian National Army's 18th Brigade explicitly included support in kind for land transportation, air transportation, health services, communications, canine maintenance, and other general and operational expenses. In exchange, the Colombian Ministry of Defense would "provide special attention, based on its own judgment, to the activities aimed at maintaining the conditions of protection and security of Ecopetrol's activities." The Agreement specified that the Ministry would not use any of Ecopetrol's funds for lethal purposes, would respect human rights and international humanitarian laws, could divert its attention elsewhere as needed, and could unilaterally terminate the Agreement for any reason.
The Agreement also created a Supervisory Group and Coordination Committee to implement the Agreement. The Supervisory group, made up of three "superior officers" designated by the Ministry, was charged with overseeing the "correct allocation of the resources" and "implementation of the foreseen security operations, maintenance, and protection plans." The Coordination Committee, consisting of three Ecopetrol representatives (including a representative of OxyCol) and six military representatives, was to "direct the execution of the Agreement [to achieve] high levels of efficacy and transparency." Specifically, the Coordination Committee would evaluate the Supervisory group, the efficiency and impact of the Agreement on oil operations, and the Agreement's development and necessary corrective measures; keep records related to the execution of the Agreement; ensure that the Agreement would not negatively affect the relationships between the parties and the community; and address unforeseen circumstances that could hinder the execution of the Agreement. Moreover, the Agreement stated that, notwithstanding the powers vested in the Coordination Committee, "the strategic and operational control of the activities carried out by the" Ministry
In August 2004, after the United States and OxyCol had both begun to provide funding to the CNA, four members of the 18th Brigade assisted by one civilian murdered the three union leaders in Caño Seco, roughly sixty kilometers from the Pipeline. The soldiers, and later high-level officials from the Colombian government, claimed that the leaders were guerrilla members who had attacked the soldiers, and that the soldiers merely returned fire. The union leaders' family members, on the other hand, said that the soldiers executed the leaders after they left one of their homes with their hands in the air.
The union leaders and the social and trade organizations to which they belonged had protested the environmental destruction caused by the Pipeline and OxyCol's plan to drill for oil on or near land belonging to the U'Wa indigenous people. They also criticized the CNA for committing "acts of barbarity" in an effort to protect the Pipeline. According to the complaint, the CNA retaliated against the leaders because of their social activism by conducting illegal searches and detentions of the leaders, their family members, and members of their social and trade organizations.
The killings spurred various criminal, disciplinary, and administrative proceedings in Colombia. All of the actions that have been formally resolved and are included in the record found that the soldiers wrongly executed the union leaders without any provocation, but did not do so at the direction of the CNA. Plaintiffs imply nevertheless that the soldiers killed the union leaders because the leaders opposed OxyCol's oil exploitation in the region.
We note that the Colombian proceedings' conclusion that the killings were not instigated by the government was partially corroborated by Special Rapporteur Philip Alston of the United Nations Office of the High Commissioner for Human Rights. In 2010, Mr. Alston reported to the General Assembly on extrajudicial killings of civilians in Columbia. He dismissed the idea that such killings "were committed as part of an official policy or that they were ordered by senior government officials."
In addition, since 2004, the State Department has issued a series of official certifications to Congress stating "that the Colombian Government and Armed Forces are meeting statutory criteria related to human rights and severing ties to paramalitary groups." These certifications were required by law in order to obligate funds appropriated by Congress to the Colombian Armed Forces. Consolidated Appropriations Act of 2004, Pub.L. No. 108-199, § 563(a)(1), (3), 118 Stat. 3, 193 (2004).
Seven years after the killings, Plaintiffs filed suit against Occidental in the Central District of California under the Alien Tort Statute, 28 U.S.C. § 1350, and California state law. Plaintiffs claimed that Occidental, via its Colombian subsidiary, OxyCol,
Relying on Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir.2007), the district court granted Occidental's 12(b)(1) motion to dismiss on political question grounds, concluding that Plaintiffs "advanced no theory of liability against Occidental that would not apply with equal force to the foreign policy and national security determinations made by the political branches." Because Plaintiffs (1) articulated no additional facts or theories that would avoid the political question, and (2) did not request additional time or
We review a district court's dismissal for lack of jurisdiction de novo, and we may affirm on any basis fairly supported by the record. Corrie, 503 F.3d at 979. When determining whether a political question precludes jurisdiction, we may look beyond the complaint to facts properly in the record, id. at 982, and "need not presume the truthfulness of the plaintiffs' allegations," White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000). Furthermore, "we `need not ... accept as true allegations that contradict matters properly subject to judicial notice or by exhibit.'" Gonzalez v. Planned Parenthood of L.A., 759 F.3d 1112, 1115 (9th Cir.2014) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001)); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.2003) ("[W]e are not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint.").
"Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803). This principle is "primarily a function of the separation of powers." Baker, 369 U.S. at 210, 82 S.Ct. 691. "`The conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative [branches]... and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.'" Corrie, 503 F.3d at 982 (quoting Oetjen v. Cent. Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726 (1918)). But not every case that "touches foreign relations lies beyond judicial cognizance." Baker, 369 U.S. at 211, 82 S.Ct. 691.
In this case, our task is to determine whether Plaintiffs' claims implicate a nonjusticiable political question. To make this decision, Baker requires us to consider whether each claim presents:
We conclude that the district court's analysis was correct. Each of Plaintiffs' claims rests on Occidental's partial funding of, and alleged control over, the 18th Brigade. Yet Occidental's "control," when stripped of implausible allegations in the complaint, is premised on nothing more than partial funding. We can therefore see no principled way to sever Occidental's funding from that of the United States. It follows that under the fourth, fifth, and sixth Baker tests, Plaintiffs' claims are inextricably bound to an inherently political question — the propriety of the United States' decision to provide $99 million worth of training and equipment to the 18th Brigade at the same time and for the same purpose as Occidental allegedly providing $6.3 million — and thus are beyond the jurisdiction of our courts.
Our decision in Corrie, in which we dismissed all of the plaintiffs' claims against Caterpillar, Inc. on political question grounds, informs our analysis. 503 F.3d at 977. The Corrie plaintiffs sued Caterpillar after the United States paid for, and Caterpillar supplied, bulldozers to the Israeli Defense Forces ("IDF"), which the IDF used to injure and kill the plaintiffs' family members. Id. We dismissed the plaintiffs' claims as nonjusticiable because "each claim unavoidably rest[ed] on the singular premise that Caterpillar should not have sold its bulldozers to the IDF." Id. at 982. Because those "sales were financed by the executive branch pursuant to a congressionally enacted program calling for executive discretion as to what lies in the foreign policy and national security interests of the United States," the action "would necessarily require the judicial branch ... to question the political branches' decision to grant extensive military aid to Israel." Id.
The same reasoning applies here: each of Plaintiffs' claims unavoidably rests on the premise that Occidental's indirect funding of the 18th Brigade was either knowing or negligent-and-reckless support for a group of guerrillas involved in human rights violations. However, the United States provided much greater funding to the 18th Brigade at the same time and for the same purpose as Occidental, and thus this case necessarily requires the judicial branch to question the political branches' decision to provide extensive military aid to Colombia and the CNA. See id. Insofar as Occidental was providing funding to the 18th Brigade, it did so "cheek to jowl" with the government of the United States acting in the interests of its national security.
Plaintiffs contend that they need look no further than Occidental itself in order to make their case. However, as we noted in Corrie, "resolving their suit will necessarily require us to look beyond the lone defendant in this case and toward the foreign policy interests and judgments of the United States government itself." 503 F.3d at 984. It is true that in Corrie we noted the "decisive factor" was that the United States paid for the bulldozers and thus was a "direct actor." Id. at 982, 983 n. 8. However, as the district court explained, the United States' purchase of the bulldozers
Plaintiffs cite to a handful of military contractor cases that purport to argue in favor of finding no political question here. But those cases at most required the courts to question the on-the-ground execution of military-related operations, not underlying foreign-policy choices such as the very decision to engage in military activity. See Koohi v. United States, 976 F.2d 1328, 1331 (9th Cir.1992) (finding a claim brought by family members of those killed when a United States warship accidentally shot down a civilian airliner justiciable because "governmental operations are a traditional subject of damages actions"); Lane v. Halliburton, 529 F.3d 548, 562 (5th Cir.2008) (declining to dismiss the case at the motion to dismiss stage because the plaintiffs "presented a plausible set of facts as to the fraud and misrepresentation claims" that could have been tried without implicating a political question); Bixby v. KBR, Inc., 748 F.Supp.2d 1224, 1239 (D.Or.2010) (finding the claims against a government contractor who failed to advise the plaintiffs of hazardous chemicals at their work site in Iraq justiciable because "the matter fundamentally at issue [was the] defendants' performance of [their] contractual obligations ... rather than the advisability of any governmental policy-related decision"). Here, to the contrary, Plaintiffs' claims fundamentally question Occidental's, and thus the United States', very decision to fund the 18th Brigade, rather than Occidental's supervision of the Brigade's on-the-ground operations.
Granted, Plaintiffs' agency theories of liability and negligent hiring claim, which require Plaintiffs to prove Occidental had operational control over the 18th Brigade or those soldiers who committed the killings, might sever the political question from this case if plausibly pled. See generally Lane, 529 F.3d at 562. But Plaintiffs have failed to plausibly plead those claims, because they have not pleaded "factual content that allows the court to draw the reasonable inference that" Occidental had operational control of the 18th Brigade. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
The May 2004 Inter-Institutional Cooperation Agreement gives complete operational control over the 18th Brigade to the Ministry of Defense. Although the Ministry agreed to give special attention to the Pipeline, it could divert its attention elsewhere as needed and could unilaterally terminate the Agreement for any reason. Even the Coordination Committee, to which OxyCol could appoint just one of its ten members, was explicitly denied "strategic and operational control" over the CNA.
Much of the information Plaintiffs have put forth to show control despite the explicit terms of the Agreement consists of reports from 1997 and 2001, which are of limited worth. For example, Plaintiffs point to statements made by OxyCol's president regarding the CNA, including that the CNA had the "obligation" to protect the Pipeline and that Occidental "rel[ied] exclusively on the government to provide protection." They also rely on a footnote in the Government Accountability Office report on the United States' aid program, which explained that Occidental's pipeline instrumentation would notify CNA of an attack on the Pipeline, and the CNA
Plaintiffs, while recognizing that they will "likely have to show that Occidental had a right to control the 18th Brigade," have failed to allege sufficient facts to suggest that Occidental had any control over the day-to-day operations of the 18th Brigade. Their agency theory of liability and negligent hiring claim could survive only if we implausibly conclude that Occidental somehow exercised more control over the 18th Brigade than the United States did, even though the United States provided much greater funding, provided actual training, and oversaw the execution of the aid program, vetting the 18th Brigade every step of the way. See Warren, 328 F.3d at 1139; cf. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. On this record, the notion that the CNA ceded control of the 18th Brigade to a Delaware corporation with headquarters in the United States is utterly fanciful. In other words, even accepting Plaintiffs' factual allegations, they fail to support a "reasonable inference" that Occidental through its funding had any control over the operations of the 18th Brigade, or that Occidental's "control," whatever it was, can be distinguished from the United States' "control" over the 18th Brigade.
Finally, Plaintiffs incorrectly assert that the State Department's failure to submit a statement of interest in this case "indicates a lack of conflict." To the contrary, our circuit precedent clearly states that the State Department's silence on this issue is a neutral factor. Alperin, 410 F.3d at 556. Moreover, here, the United States' funding, training, and oversight of the 18th Brigade was so obvious as to make a formal statement unnecessary. The facts of this case simply cannot be framed in such a way that severs the tie between the United States' and Occidental's funding of the CNA and the 18th Brigade. Baker and Corrie require that we leave the issue to the political branches.
We normally will "not consider an issue not passed upon below," Dodd v. Hood River Cnty., 59 F.3d 852, 863 (9th Cir. 1995) (internal quotation mark omitted), including legal arguments, see USA Petroleum Co. v. Atl. Richfield Co., 13 F.3d 1276, 1283-84 (9th Cir.1994). Plaintiffs' argument on appeal that the district court should have denied Occidental's motion to dismiss so that they could conduct discovery on the political question issue falls into that chasm. Plaintiffs did not make that argument below and, thus, have waived it. Neither did they request an opportunity to amend their complaint, choosing instead to appeal.
Occidental's funding of the 18th Brigade, at the same time and for the same purpose as the United States, is inextricably bound to foreign policy decisions which our Constitution consigns to, and have already been made by, the political
If, as Plaintiffs allege in paragraph 88 of their complaint, "Occidental knew or should have known that for years preceding the decedents' murders, there were widespread human rights violations in Arauca committed by the CNA, especially by the 18th Brigade," on this record the same would have to be said of the State Department. Indeed, Plaintiffs' allegations are manifestly irreconcilable with the State Department's human rights certifications to Congress. We remain bound by the Supreme Court's holding in Oetjen, 246 U.S. at 302, 38 S.Ct. 309, which we reiterated in Corrie, 503 F.3d at 982, that the "conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative [branches] ... and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision." As the political question doctrine bars us from considering the merits of Plaintiffs' claims, the district court's dismissal of their action is
TROTT, Circuit Judge, concurring:
I agree with my colleagues' resolution of this case and our per curiam opinion. I write separately only to augment the background material that demonstrates that the Plaintiffs' complaint raises nonjusticiable political questions, thus depriving us of jurisdiction to entertain it.
To illustrate the direct foreign policy interests of the United States that envelop every aspect of Plaintiffs' case, I turn to relevant excerpts from the testimony and presentation on April 10, 2002, of Marc Grossman, our State Department's Undersecretary for Public Affairs. He delivered this testimony to a Subcommittee of the Committee of Appropriations of the House of Representatives in connection with an appropriation of funds for fiscal year 2003, requested by President George W. Bush. In Subcommittee Chairman Kolbe's opening statement, he set the stage for the undersecretary's testimony:
Foreign Operations, Export Financing, and Related Programs Appropriations for 2003: Hearing Before the Subcomm. on Foreign Operations, Export Financing, and Related Programs of the Comm. on Appropriations, 107th Cong. 271-272 (2002).
Undersecretary Grossman then explained, in oral testimony and a written statement, our purpose and policy in seeking this appropriation from Congress.
107th Cong. 273-278 (Grossman Testimony), 284-290 (Grossman Statement) (emphasis supplied).
Peter Rodman, assistant secretary of defense for international security affairs, then provided the Subcommittee with the Defense Department's perspective on the United States' involvement in Colombia:
107th Cong. 303-04 (emphasis supplied).
Major General Gary Speer, acting commander in chief of the United States Southern Command, provided the Subcommittee with a written statement on the appropriations, which included the following:
107th Cong. 345 (emphasis supplied).
After this hearing, the Subcommittee submitted a written question to Undersecretary Grossman: "Why would the Administration choose to fund the training of the Colombian military to protect an oil pipeline that is owned in part by Occidental Petroleum?" 107th Cong 390. This was Undersecretary Grossman's response:
107th Cong. 390-91 (emphasis supplied).
In the United States Senate, before the Committee on Foreign Relations on February 6, 2003, the State Department's witness on our foreign affairs budget for 2004 was Secretary of State Colin L. Powell. Pertaining to the issues in this case, he stated as follows:
Foreign Affairs Budget: Hearing Before the Comm. on Foreign Relations, U.S. Senate, 108th Cong. 12-13 (Powell Testimony), 19 (Powell Statement) (2003) (emphasis supplied).
To implement our policy of assisting Colombia, Congress appropriated $71 million in 2002 and 2003 to buy helicopters and related support for the 18th Brigade, and $28 million dollars to provide the 18th Brigade with equipment and training by U.S. Special Forces. The training by the U.S. Special Forces began in January 2003, though the helicopters were delayed until 2005. In a report requested by both the House of Representatives and the Senate, the United States Government Accountability Office ("GAO") reported that:
Of considerable significance in this case is the series of official certifications to Congress by the State Department that it had determined "that the Colombian Government and Armed Forces are meeting statutory criteria related to human rights and severing ties to paramilitary groups." These certifications were required by law in order to obligate funds appropriated by Congress to the Colombian Armed Forces. Consolidated Appropriations Act of 2004, Pub.L. No. 108-199, § 563(a)(1), (3), 118 Stat. 3 (2004).
Secretary of State Powell issued the first of these positive certifications to Congress on September 24, 2004. Secretary of State Condoleezza Rice issued similar positive certifications to Congress in 2005, 2006, and 2007; and the State Department followed suit from 2008 through 2011, when this case began. These State Department human rights certifications stand in stark contrast to Plaintiffs' complaint and theory of liability.
As illustrated by this background material, the Supreme Court's authoritative statement in Oetjen v. Cent. Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726 (1918), controls the resolution of this case:
As my colleagues demonstrate, the Plaintiffs' complaint falls squarely within this prohibition.