Alien Tort Case Development: Ninth Circuit Affirms Dismissal of Claims Against Occidental Petroleum

Alien Tort GavelIn mid-December, the Ninth Circuit Court of Appeals affirmed the dismissal of claims filed pursuant to the Alien Tort Statute (“ATS”) against Occidental Petroleum. Plaintiffs in the case argued that Occidental should be held liable for the deaths of three union leaders in Colombia who were killed by the Colombian National Army’s 18th Brigade in 2004. The court affirmed the lower court’s finding that the case raised non-justiciable political questions.

The facts, as stated in the court’s opinion, are as follows: beginning in the 1980s, Occidental’s Colombian subsidiary, Occidental de Colombia, Inc. (“OxyCol”) and Ecopetrol, a Colombian-state owned oil company, conducted oil exploration exercises and jointly built the Caño Limón pipeline in Colombia. OxyCol is the operator of the pipeline. In May 2004, Ecopetrol agreed to provide approximately $6.3 million in assistance to the Colombian Ministry of National Defense in exchange for increased military support in protecting the pipeline from attacks. The money was paid from an account held jointly with OxyCol and implementation of the agreement was supervised by a committee that included a representative of OxyCol.

In August 2004, after the companies began providing funding to the military, members of the 18th Brigade murdered three union leaders who had been involved in protesting the pipeline and other activities conducted by the companies. Subsequent proceedings in Colombia found that the soldiers had acted without provocation and were not operating pursuant to official orders from the Army.

Beginning in 2002, the United States Government was also providing large amounts of aid to help the 18th Brigade secure the pipeline. This aid included the appropriation of $71 million for helicopters and related support and $28 million for equipment and training. Since 2004, the U.S. State Department has issued certifications to Congress stating that the Colombian Government and its Armed Forces are meeting “statutory criteria related to human rights and severing ties to paramilitary groups.”

Plaintiffs argued that Occidental had provided purposeful and substantial assistance to the 18th Brigade with the knowledge that members of the Brigade would likely commit human rights abuses. They also argued that the company exercised a degree of operational control over the Brigade.

Ultimately, the court found that:

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 are thus beyond the jurisdiction of our courts.

Notably, the court also found that plaintiffs’ claims that the company “knew or should have known” that the 18th Brigade had committed human rights violations in the years preceding the murders were “manifestly irreconcilable with the State Department’s human rights certifications to Congress.”

Finally, the court noted that plaintiffs’ agency theories of liability and a claim made that the company had engaged in negligent hiring might sever the political question from this case” if plausibly pled. The court observed, however, that such theories require plaintiffs to prove that Occidental had operational control over the 18th Brigade or the specific soldiers who committed the murders. The court concluded that plaintiffs had failed to plead factual content that would allow the court to draw the reasonable inference that such operational control existed.

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