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SG urges denial in Indonesia case

The U.S. Solicitor General on Friday urged the Supreme Court not to get involved, at this stage, in a lawsuit in U.S. courts by villagers in Indonesia claiming they were abused by guards at a natural gas plant operated there by Exxon Mobil Corp. and affiliates.  Sol. Gen. Paul D. Clement said lower court rulings had significantly narrowed the lawsuit, and it does not present, as of now, any real threats to U.S. foreign policy interests and no claims against the Indonesian government.   The case is Exxon Mobil, et al., v. Doe, et al. (07-81). The U.S. government’s views were sought by the Court on Nov. 13. The case has not yet been scheduled for consideration by the Court.

The government’s amicus brief can be downloaded here.  An earlier post on this blog describing a denial in January by Chief Justice John G. Roberts, Jr., of a request to stop further evidence-gathering in the case in District Court can be read here.

The appeal in the case does not directly challenge the lawsuit, although the end of the case is the ultimate objective. Rather, the appeal seeks to test whether Exxon Mobil had a right to file an immediate appeal to the D.C. Circuit when a federal District judge refused to dismiss the case entirely.  The Circuit Court found that Exxon Mobil had not made a case for a right to appeal at this stage.

In the government’s view, the Circuit Court went a bit too far in limiting the kinds of cases in which an immediate appeal can be pursued when there are concerns about separation of powers — that is, concerns that allowing a case to go to trial in the courts may intrude upon Executive Branch powers.  It appeared, Clement wrote, that the Circuit Court had said such swift appeals are allowed only if there is a claim of immunity to suit altogether.  There may be cases, Clement added, when no specific immunity to suit is claimed, but the case still may risk an intrusion into Executive prerogative.  That is not true of this case at present, he said.

The State Department at one point had voiced concerns, in the Indonesia case, that the case had the potential for embarrassing the government of Indonesia and of intruding on U.S. foreign policy concerns. The Department never asked, however, that the entire case be dismissed without a trial. The Department’s concerns, Clement wrote, have been largely answered by dismissal of the claims made under federal laws and dismissal of any claims against a company owned by the Indonesian government.  What remains of the case, the Solicitor General said, are only state common law tort claims by private individuals against private corporations.  While such claims may be preempted by federal law, the brief added, that is not an issue in the case as it stands before the Supreme Court.

Clement’s brief was somewhat critical of the Exxon Mobil petition, suggesting that it had overstated what remained of the case.  Some of the arguments made, the brief said, no longer apply given what the District Court has done to narrow the case, and what the Circuit Court suggested remains as a possible remedy — mandamus –if the case’s continuation raises new foreign policy concerns that arouse the State Department anew.