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PRESBYTERIAN CHURCH OF SUDAN v. TALISMAN ENERGY

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 ...


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