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PRESBYTERIAN CHURCH OF SUDAN v. TALISMAN ENERGY

United States District Court, S.D. New York


August 30, 2005.

THE PRESBYTERIAN CHURCH OF SUDAN, REV. MATTHEW MATHIAN DEANG, REV. JAMES KOUNG NINREW, NUER COMMUNITY DEVELOPMENT SERVICES IN U.S.A., FATUMA NYAWANG GARBANG, NYOT TOT RIETH, individually and on behalf on the Estate of her husband JOSEPH THIET MAKUAC, STEPHEN HOTH, STEPHEN KUINA, CHIEF TUNGUAR KUEIGWONG RAT, LUKA AYUOL YOL, THOMAS MALUAL KAP, PUOK BOL MUT, CHIEF PATAI TUT, CHIEF PETER RING PATAI, CHIEF GATLUAK CHIEK JANG, YIEN NYINAR RIEK, and MORIS BOL MAJOK, and on behalf of all others similarly situated, Plaintiffs,
v.
TALISMAN ENERGY, INC., and REPUBLIC OF THE SUDAN, Defendants.

The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

The plaintiffs are current and former residents of southern Sudan who allege, pursuant to the Alien Tort Statute, 28 U.S.C. § 1350 ("ATS"), that they were victims of genocide, crimes against humanity, and other violations of international law perpetrated by the Government of Sudan ("Sudan") and a Canadian energy company, Talisman Energy, Inc. ("Talisman"). The United States Government ("Government") has submitted a Statement of Interest ("Statement") pursuant to 28 U.S.C. § 517 expressing concerns regarding the impact of this litigation on this Nation's foreign affairs and on the Government of Canada's foreign policies towards Sudan. Based on the Statement, defendant Talisman has moved for judgment on the pleadings,*fn1 arguing that this action should be dismissed under the doctrine of international comity, as well as to avoid undue interference with the discretion of the executive and legislative branches in managing foreign affairs, or in the alternative, under the political question doctrine. For the following reasons, Talisman's motion is denied.

BACKGROUND

Although relevant facts are summarized here, more detailed recitations of the allegations and history of this litigation appear in prior Opinions, familiarity with which is assumed.*fn2 The Statement

The Statement is a three page statement from the United States Attorney that includes as attachments a letter from the Department of State ("State Letter") and a diplomatic note from the Embassy of Canada to the Department of State ("Canada Letter").*fn3 The Statement indicates that it is intended to inform the Court

(1) of concerns expressed by the United States Department of State as to the effect of the above-referenced matter on this Nation's foreign affairs, especially in light of the Government's understanding that Canada's judiciary is equipped to consider claims such as those raised here; and (2) of concerns expressed by the Government of Canada about the exercise of extraterritorial jurisdiction by this Court over the Canadian defendant Talisman Energy Inc. in this matter, which the Government of Canada states, among other things, frustrates its policies vis a vis Sudan.
The Canada Letter conveys Canada's view that this Court's exercise of jurisdiction in this case "constitutes an infringement in the conduct of foreign relations by the Government of Canada" and "creates a `chilling effect' on Canadian firms engaging in Sudan and the ability of the Canadian government to implement its foreign policy initiatives through the granting and denial of trade support services." In this connection, Canada emphasizes its concerns regarding the possible impact of this litigation on Canadian efforts to promote "the peaceful resolution of Sudan's internal disputes." Canada has spent millions of dollars in humanitarian aid and to support peace efforts in the Sudan. Canada states that it uses trade support services as "both a stick and carrot in support of peace," and that while the "inducement for Sudan if they achieve peaceful resolution of their internal disputes will be the reinstatement of trade support services[,] . . . the impending US court action removes that inducement." According to Canada, in the event that Sudan's peaceful resolution of its internal disputes justifies the resumption of Canadian trade support services, "Canadian firms will likely absent themselves from Sudan and therefore not contribute to its economic revitalization out of fear of US courts." The trade support services that Canada identifies are trade support to Canadian exporters and importers, assistance from the Canadian Trade Commissioner Service, export credits and insurance for the purpose of doing business in Sudan and entering its markets.

Canada also objects to the exercise of jurisdiction under the ATS to "activities of Canadian corporations that take place entirely outside the US." Canada notes that it passed the Foreign Extraterritorial Measures Act which authorizes the Attorney General of Canada to, among other things, "prohibit anyone in Canada from complying with measures from a foreign state or tribunal affecting international trade or commerce."

The State Letter explains that "[t]he Department of State takes no position on the merits of the pending litigation but shares the government of Canada's concern about the difficulties that can arise from an expansive exercise of jurisdiction by the federal courts under the ATS." According to the State Letter,

[t]he United States shares with the government of Canada a profound abhorrence of the numerous and intolerable human rights violations and other atrocities that have taken place in Sudan over many years. This Administration has been working actively and directly with the government of Sudan and with the international community for several years to bring an end to the decades-old conflict in southern Sudan and to bring relief to the many thousands of victims of that conflict. Most recently, the United States led the humanitarian relief effort for the displaced in Darfur and refugees in Chad, as well as provided support to the African Union ceasefire-monitoring mission. In both of these efforts, Canada has also played a prominent role. In January 2005, the Sudan People's Liberation Movement/Army and the government of Sudan, parties to the conflict in southern Sudan, signed a comprehensive peace agreement ending 22 years of civil war. The international community is now focused on helping the parties implement that agreement and bring an end to the violence and atrocities in Darfur.*fn4
The State Letter argues that "when the government in question protests that the U.S. proceeding interferes with the conduct of its foreign policy in pursuit of goals that the United States shares, we believe that considerations of international comity and judicial abstention may properly come into play." It also contends that concerns about the proper scope of the ATS should be strong where, among other things, "a foreign government has interposed a specific and strong objection . . . [and] claims regulatory and jurisdictional competence over its nationals and the conduct in question," and the lawsuit has little or no nexus to the United States. The State Letter also argues that the ATS should only apply to disputes affecting the rights of aliens within the United States for acts that take place in this country.*fn5

DISCUSSION

Based on the Statement, Talisman argues that this action should be dismissed under the doctrine of international comity out of respect for Canada's sovereign interests in pursuing its own foreign policy towards Sudan and in regulating the activities of Canadian companies operating there. Talisman also argues that this action interferes with United States foreign policy towards Canada and Sudan, and therefore it should be dismissed to avoid undue interference with the discretion of the executive and legislative branches in managing foreign affairs, or in the alternative, under the political question doctrine.*fn6

The Statement has been submitted pursuant to 28 U.S.C. § 517, which provides:

The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.
28 U.S.C. § 517. Although this statute permits the Government to intervene formally with a motion pursuant to Rule 24(a), Fed.R.Civ.P., see Roeder v. Islamic Republic of Iran, 195 F. Supp. 2d 140, 158 (D.D.C. 2002) (collecting examples of such intervention motions), it has not done so in this action.

Courts have assigned varying weight to statements of interest by the United States Government according to the circumstances. Referring to cases where the governments of the United States and South Africa submitted statements of interest indicating that ATS lawsuits against corporations that did business in apartheid South Africa interfered with South Africa's Truth and Reconciliation Commission, which functioned through confession and absolution, the Supreme Court stated that "[i]n such cases, there is a strong argument that federal courts should give serious weight to the Executive Branch's view of the case's impact on foreign policy." Alvarez-Machain, 124 S. Ct. at 2766 n. 21 (emphasis supplied). The Supreme Court has also stated that Government views on issues of statutory construction "merit no special deference" but that "should the State Department choose to express its opinion on the implications of exercising jurisdiction over particular petitioners in connection with their alleged conduct, that opinion might well be entitled to deference as the considered judgment of the Executive on a particular question of foreign policy." Republic of Austria v. Altmann, 541 U.S. 677, 701-02 (2004) (emphasis in original). Where the State Department had submitted a statement of interest, the Second Circuit has held that "an assertion of the political question doctrine by the Executive Branch [would be] entitled to respectful consideration, [but] would not necessarily preclude adjudication." Kadic v. Karadzic, 70 F.3d 232, 250 (2d Cir. 1995). The Eleventh Circuit has more recently held that the "statement of interest from the executive is entitled to deference and we give the executive's statement such deference in our international comity analysis," but that "[a] statement of national interest alone, however, does not take the present litigation outside of the competence of the judiciary." Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1236 (11th Cir. 2004). In another ATS case, a California district court assigned weight to a United States Government statement of interest according to the strength of the U.S. interest, noting that while the United States had a "substantial interest" in the lawsuit, it should be contrasted with the stronger interest expressed in Ungaro-Benages, 379 F.3d 1227, which involved the negotiation of an agreement "with the government of Germany to establish an alternative forum for the sole purpose of handling reparations claims arising out of the Nazi regime." Mujica v. Occidental Petroleum Corp., ___ F. Supp. 2d ___, No. 032860WJR(JWJX), 2005 WL 1962673, at *24 (C.D. Cal. June 28, 2005) (emphasis in original).*fn7 See also Alperin v. Vatican Bank, 410 F.3d 532, 556-57 (9th Cir. 2005) (collecting cases).

There is comparatively little guidance regarding the appropriate weight to assign to statements of interest made by foreign governments transmitted directly to a court, or as in this case, that accompany a United States Government statement of interest. For example, one district court has noted, without assigning particular weight to the foreign government statement in question, that because "[t]he entire point of the comity doctrine is to afford consideration and respect to the laws and interests of foreign sovereign nations," in appropriate circumstances the views of a foreign government regarding the impact of United States litigation are "properly brought to the attention of the court." Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116, 1204 (C.D. Cal. 2002). The court observed that "[i]f a foreign government finds the litigation offensive, it may lodge a protest with our government; our political branches can then respond in whatever way they deem appropriate," including communicating the executive branch's "own views as to the conduct of the litigation" so that "the court . . . can take those views into account." Id. (citation omitted).

Because the amount of weight to assign to the Statement, including the State Letter and the Canada Letter, does not affect the disposition of Talisman's motion, it will be assumed, without deciding, that "serious weight" should be assigned to each part of the Statement. See Alvarez-Machain, 124 S. Ct. at 2766 n. 21. Because this Court has already decided that international comity towards the laws or policies of Sudan and Canada does not warrant dismissal of this action, see Presbyterian Church, 244 F. Supp. 2d at 342-44, and that the political question doctrine also does not warrant dismissal, see id. at 349, it is necessary only to address whether the Statement alters those prior conclusions.

1. International Comity

Declining to exercise jurisdiction for reasons of international comity is a discretionary act that "generally means deference to a foreign nation's legislative, executive, or judicial enactment." Id. at 342. See also Bigio v. Coca-Cola Co., 239 F.3d 440, 454 (2d Cir. 2000) (quoting Hilton v. Guyot, 159 U.S. 113, 164 (1895)). Talisman contends that the Statement demonstrates that this action frustrates Canada's policies towards Sudan in three ways and therefore warrants dismissal as a matter of international comity. First, Talisman argues that Canada adopted a policy of constructive engagement towards Sudan in 1999 and encouraged Talisman to invest in Sudan, which requires this Court to sit in judgment of past Canadian executive policy. Second, Talisman argues that this action creates a chilling effect for future Canadian investment in Sudan, and therefore interferes with Canada's policy, as expressed in the Canada Letter, of using the prospect of future trade as an inducement for Sudan to resolve its disputes peacefully. Third, Talisman contends that this Court should invoke the doctrine of international comity because Canadian courts can adjudicate this action.

In its first argument, Talisman likens this action to In re South African Apartheid Litig., 346 F. Supp. 2d 538 (S.D.N.Y. 2004), which considered, among other things, the plaintiffs' theory that the defendant corporations "violated the law of nations by doing business in apartheid South Africa." Id. at 551.*fn8 In South African Apartheid, the United States, the United Kingdom, Germany, and Switzerland had all adopted a "policy of constructive engagement" by supporting and encouraging business investment in apartheid South Africa, and the United States and South Africa had submitted statements of interest expressing their concern for the effect of the lawsuit on business investment in South Africa. Id. at 553-54. Noting that it "must be extremely cautious in permitting suits here based upon a corporation's doing business in countries with less than stellar human rights records, especially since the consequences of such an approach could have significant, if not disastrous, effects on international commerce," the court dismissed the plaintiffs' ATS claims. Id. at 554.

Talisman argues that Canada adopted a similar policy of constructive engagement towards Sudan in 1999, and that permitting this lawsuit to continue will cause this Court to render judgment on a Canadian executive policy in a manner that the South African Apartheid court refused to permit. South African Apartheid, however, does not apply to the facts of this case, because the plaintiffs allege that Talisman knowingly assisted Sudan in perpetrating a campaign of genocide and crimes against humanity, not that Talisman merely transacted business in and with Sudan. See Presbyterian Church, 226 F.R.D. at 463-65 (describing allegations). Unlike South African Apartheid, where business transactions — the result of States' executive policies of encouraging investment — were the basis for the plaintiffs' ATS claims, the claims here involve knowing assistance in the commission of grave human rights abuses, including jointly planning attacks on civilians and supporting and facilitating those attacks. Therefore, this action does not require a judgment that Canada's executive policy of constructive engagement was or caused a violation of the law of nations; it merely requires a judgment as to whether Talisman acted outside the bounds of customary international law while doing business in Sudan.

In any event, the Canada Letter does not argue that Talisman's presence in the Sudan was pursuant to Canadian government policy or that this lawsuit requires a judgment to be rendered about any past Canadian policy. The State Letter explicitly denies any view as to the merits of this lawsuit. For each of these reasons, Talisman's first argument is rejected.

Talisman's second argument is that the existence of this lawsuit interferes with Canada's policy of using the prospect of future trade as an inducement for Sudan to resolve its disputes peacefully by chilling future Canadian investment in Sudan. This argument is firmly rooted in the Canada Letter, which predicted that Canadian firms "will likely absent themselves from Sudan and therefore not contribute to its economic revitalization out of fear of US courts."

It is assumed that Canada's judgment that this lawsuit will interfere with its foreign policy and handicap its efforts to promote peace in the Sudan is entitled to great weight and must be carefully considered. As a nation with a long and distinguished record of working to promote peace in many troubled areas of the world and a nation that has made a sustained commitment to international humanitarian efforts, its judgment brings particular credibility.

Canada asserts that it uses the promise to restore trade support services for Canadian firms as an inducement for Sudan to enter the peace process. The Canada Letter was written in the same month that a Peace Agreement was signed between warring factions in Sudan — January 2005. Because these events were essentially contemporaneous, the Canada Letter did not address the Peace Agreement or the impact that that agreement may have on the rationale behind its request that this lawsuit be dismissed.

The Canada Letter explains that Canada has promised to restore trade support services in the event that the peace process is sufficiently successful in the Sudan, and that this is part of a "stick and carrot" approach to encouraging peace. That promise implies that, should Canada make a judgment that the Sudan is not experiencing genocide or crimes against humanity on the scale alleged in this lawsuit, it will reinstate trade support services. The trade support services, as described in the Canada Letter, appear to be for the benefit of Canadian companies exporting to the Sudan and doing business with Sudanese companies.

While this Court may not question either the accuracy of the description of Canada's foreign policy in its Letter, or the wisdom and effectiveness of that foreign policy,*fn9 it remains appropriate to consider the degree to which that articulated foreign policy applies to this litigation. As the Supreme Court has explained, deference is appropriate to the extent that a sovereign's opinion has been stated with particularity, that is, regarding "particular petitioners in connection with their alleged conduct." Altmann, 541 U.S. at 702 (emphasis in original). This lawsuit does not concern a Canadian company exporting to and engaged in trade with the Sudan, but a Canadian company operating in the Sudan as an oil exploration and extraction business. Moreover, the allegations in this lawsuit concern participation in genocide and crimes against humanity, not trading activity. While there is no requirement that a government's letter must support its position with detailed argument, where the contents of the letter suggest a lack of understanding about the nature of the claims in the ATS litigation, a court may take that into account in assessing the concerns expressed in the letter.

Given the commitment by the United States to the Sudan peace process, it is telling that the United States has not advised this Court that the continuation of this lawsuit will adversely affect the Government's relations with Canada or threaten the goal of achieving peace in Sudan. In other cases, the United States Department of State has not hesitated to warn courts where it believes continuation of a lawsuit will affect a foreign government's policy to the extent that it would disturb U.S. relations with that foreign government or would adversely affect U.S. efforts to promote peace:

The Statement of Interest filed by the Department of State . . . clearly express[es] the view . . . that continued adjudication of this lawsuit will negatively impact United States foreign relations with PNG [Papua New Guinea]. Specifically, Mr. Taft explains that . . . countries participating in the peace process, particularly PNG, have expressed concern that litigation of the action might disrupt the peace effort. Because the United States "cannot lightly dismiss such expressions of concern from a friendly foreign state," Mr. Taft proffers the following opinion on the State Department's behalf: . . .
"In our judgment, continued adjudication of the claims identified by Judge Morrow in her August 30 letter would risk a potentially serious adverse impact on the peace process, and hence on the conduct of our foreign relations."
Sarei, 221 F. Supp. 2d at 1190-91 (quoting statement of interest by U.S. Department of State). See also Mujica v. Occidental Petroleum Corp., ___ F. Supp. 2d ___, No. 032860WJR(JWJX), 2005 WL 1962635, at *26 (C.D. Cal. June 28, 2005) ("In the instant case, the State Department has filed a Statement of Interest . . . [and] has expressed its view that this litigation would interfere with its approach to encouraging the protection of human rights in Colombia.").

Finally, the United States and the international community retain a compelling interest in the application of the international law proscribing atrocities such as genocide and crimes against humanity. To the extent that the Canada Letter and Talisman's arguments request this Court in its discretion to decline to exercise its jurisdiction over past events in order to avoid conflict with future Canadian foreign policy, the seriousness of the alleged past events counsel in favor of exercising jurisdiction. See Sarei, 221 F. Supp. 2d at 1207 (concluding that accusations that defendants engaged in war crimes argued "strongly" in favor of retaining jurisdiction).

In sum, while a court may decline to hear a lawsuit that may interfere with a State's foreign policy, particularly when that foreign policy is designed to promote peace and reduce suffering, dismissal is only warranted as a matter of international comity where the nexus between the lawsuit and that foreign policy is sufficiently apparent and the importance of the relevant foreign policy outweighs the public's interest in vindicating the values advanced by the lawsuit. Even giving substantial deference to the Canada Letter, Talisman has not shown that dismissal of this action is appropriate.

Talisman's third argument, that international comity should be granted because Canadian courts can adjudicate this action, is not based on the Canada Letter, but rather the Statement's indication that it is the Government's "understanding that Canada's judiciary is equipped to consider claims such as those raised here." In some circumstances, comity may be an appropriate response to foreign judicial acts, see Presbyterian Church, 244 F. Supp. 2d at 342, but it is not clear that comity is an appropriate response merely to the existence of overlapping jurisdictions. Talisman has provided no legal authority for the notion that deference should be granted because a foreign court also could entertain a lawsuit on the same subject matter.*fn10 Moreover, even if comity were appropriate where foreign courts could hear an action, this Court has already noted that Canadian courts are not able to entertain civil suits for violations of the law of nations. Id. at 337.*fn11 In sum, upon careful consideration, the Canada Letter does not justify dismissing this action for reasons of international comity.*fn12 Talisman's motion for judgment on the pleadings based on the doctrine of international comity is therefore denied. 2. Political Question Doctrine and Executive and Legislative Discretion

Talisman argues that this case should be dismissed because it raises nonjusticiable political questions regarding the actions of Sudan and United States foreign policy towards Sudan and Canada. This argument was previously rejected on Talisman's first motion to dismiss. See Presbyterian Church, 244 F. Supp. 2d at 346, 349. Although the State Letter lists a number of achievements the Government has had with respect to its promotion of peace in Sudan, neither the Statement nor the State Letter contend that this lawsuit will threaten or interfere with U.S. foreign policy towards Sudan. The State Letter indicates that it shares Canada's concern about the difficulties that can arise from an expansive exercise of jurisdiction the ATS, but neither the Statement nor the State Letter contend that this lawsuit is frustrating or will frustrate United States foreign policy towards Canada. Therefore, nothing in the Statement necessitates revisiting this issue.

Talisman also contends that recent Supreme Court precedent requires dismissing this action to avoid undue interference with executive and legislative discretion in managing foreign policy towards Sudan and Canada. The Supreme Court recently discussed in dicta the "policy of case-specific deference to the political branches" in the context of pending ATS cases addressing the South African apartheid regime. Alvarez-Machain, 124 S. Ct. at 2766 n. 21. In those cases, the United States Government and the Government of South Africa submitted statements arguing that U.S. lawsuits against corporations that did business in South Africa during its apartheid regime "interfere with the policy embodied by [South Africa's] Truth and Reconciliation Commission, which `deliberately avoided a `victors' justice' approach to the crimes of apartheid and chose instead one based on confession and absolution, informed by the principles of reconciliation, reconstruction, reparation and goodwill.'" Id. (quoting Government of South Africa declaration). "In such cases, there is a strong argument that federal courts should give serious weight to the Executive Branch's view of the case's impact on foreign policy." Id.

Talisman does not contend that the United States has participated in, supported, or approved of, a political decision to address serious human rights violations in Sudan with an approach mirroring the South African Truth and Reconciliation Commission, or any other form of comprehensive amnesty or absolution. Talisman is therefore at pains to identify United States foreign policies towards Sudan with which this action interferes, other than to speculate more generally about its effects on efforts to promote peace in Sudan. This action, however, evidently did not hinder the conclusion of the Peace Agreement. Moreover, as noted above, neither the Statement nor the State Letter contend that this case will impact on United States foreign policy towards Sudan or Canada. Consequently, Talisman's motion for judgment on the pleadings to avoid undue interference with the discretion of the executive and legislative branches in managing foreign affairs, or in the alternative, under the political question doctrine, is denied.

CONCLUSION

Talisman's motion for judgment on the pleadings based on the Statement of Interest by the United States is denied.

SO ORDERED.


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