FOR PUBLICATION
UNITED
STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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JOHN
DOE I, individually & as
Administrator of the Estate of his
deceased child Baby Doe I, & on
behalf of all others similarly
situated; JANE DOE I, on behalf of
herself, as Adminstratrix of the
Estate of her deceased child Baby
Doe I, & on behalf of all others
similarly situated; JOHN DOE II;
JOHN DOE III; JOHN DOE IV; JOHN
DOE V; JANE DOE II; JANE DOE III;
JOHN DOE VI; JOHN DOE VII; JOHN
DOE VIII; JOHN DOE IX; JOHN DOE
X; JOHN DOE XI, on behalf of
themselves & all others similarly
situated & Louisa Benson on
behalf of herself & the general
public, |
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Nos. 00-56603
00-57197
D.C. No.
CV-96-06959-
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Plaintiffs-Appellants, |
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v. |
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UNOCAL
CORPORATION, a California
Corporation; TOTAL S.A., a
Foreign Corporation; JOHN IMLE,
an individual; ROGER C. BEACH, an
individual, |
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Defendants-Appellees. |
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JOHN
ROE III; JOHN ROE VII; JOHN
ROE VIII; JOHN ROE X, |
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Nos.
00-56628
00-57195 |
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Plaintiffs-Appellants, |
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D.C.
No. |
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v. |
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CV-96-06112- |
UNOCAL
CORPORATION; UNION OIL
COMPANY OF CALIFORNIA, |
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RSWL
OPINION |
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Defendants-Appellees. |
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Appeal from the United States District Court
for the Central District of California
Richard A. Paez and Ronald S.W. Lew,
District Judges, Presiding1
Argued and Submitted
December 3, 2001—Pasadena, California
Filed
September 18, 2002
Before:
Harry Pregerson, Stephen Reinhardt, and
A. Wallace Tashima, Circuit Judges.
Opinion
by Judge Harry Pregerson;
Concurrence by Judge Reinhardt
COUNSEL
Paul L. Hoffman, Schonbrun, Desimome, Seplow, Harris & Hoffman LLP,
Venice, California; Dan Stormer and Anne Richardson, Hadsell & Stormer,
Inc., Pasadena, California; William Goodman, Jennifer M. Green, and
Beth Stephens, Center for Constitutional Rights, New York, New York;
Katharine J. Redford and Richard Herz, Earthrights International, Washington,
District of Columbia; Judith Brown Chomsky, Elkins Park, Pennsylvania;
Julie Shapiro, Tacoma, Washington; Dilan Esper, Stein & Flugge,
LLP, Los Angeles, California, for plaintiffs-appellants Doe.
Terrence
P. Collingsworth and Natacha Thys, International Labor Rights Fund,
Washington, District of Columbia; Christopher E. Krafchak and Kenderton
S. Lynch III, Krafchak & Associates, Los Angeles, California; Martin
J. D’Urso, Hilary Cohen, and Nadia Ezzelarab, Kohn, Swift &
Graf, P.C., Philadelphia, Pennsylvania; Christobal Bonifaz and John
C. Bonifaz, Law Offices of Christobal Bonifaz, Amherst, Massachusetts,
for plaintiffs-appellants Roe.
Edwin
V. Woodsome, Jr., D. Barclay Edmundson, David G. Meyer, and Keri R.
Curtis, Howrey Simon Arnold & White, LLP, Los Angeles, California;
Jerrold J. Ganzfried, Howrey Simon Arnold & White, LLP, Washington,
District of Columbia, for defendants-appellees Unocal Corporation, Union
Oil Company of California, John Imle, and Roger C. Beach.
OPINION
PREGERSON,
Circuit Judge:
This
case involves human rights violations that allegedly occurred in Myanmar,
formerly known as Burma. Villagers from the Tenasserim region in Myanmar
allege that the Defendants directly or indirectly subjected the villagers
to forced labor, murder, rape, and torture when the Defendants constructed
a gas pipeline through the Tenasserim region. The villagers base their
claims on the Alien Tort Claims Act, 28 U.S.C. § 1350, and the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §
1961 et seq., as well as state law.
The
District Court, through dismissal and summary judgment, resolved all
of Plaintiffs’ federal claims in favor of the Defendants. For the
following reasons, we reverse in part and affirm in part the District
Court’s rulings.
I.
FACTUAL
AND PROCEDURAL BACKGROUND
A.
Unocal’s Investment in a Natural Gas Project in Myanmar.
Burma
has been ruled by a military government since 1958. In 1988, a new military
government, Defendant-Appellee State Law and Order Restoration Council
(“the Myanmar Military”), took control and renamed the country
Myanmar. The Myanmar Military established a state owned company, Defendant-Appellee
Myanmar Oil and Gas Enterprise (“Myanmar Oil”), to produce
and sell the nation’s oil and gas resources.
In
1992, Myanmar Oil licensed the French oil company Total S.A. (“Total”)
to produce, transport, and sell natural gas from deposits in the Yadana
Field off the coast of Myanmar (“the Project”). Total set
up a subsidiary, Total Myanmar Exploration and Production (“Total
Myanmar”), for this purpose. The Project consisted of a Gas Production
Joint Venture, which would extract the natural gas out of the Yadana
Field, and a Gas Transportation Company, which would construct and operate
a pipeline to transport the natural gas from the coast of Myanmar through
the interior of the country to Thailand.
Also
in 1992, Defendant-Appellant Unocal Corporation and its wholly owned
subsidiary Defendant-Appellant Union Oil Company of California, collectively
referred to below as “Unocal,” acquired a 28% interest in
the Project from Total. Unocal set up a wholly owned subsidiary, the
Unocal Myanmar Offshore Company (“the Unocal Offshore Co.”),
to hold Unocal’s 28% interest in the Gas Production Joint Venture
half of the Project.2 Similarly, Unocal
set up another wholly owned subsidiary, the Unocal International Pipeline
Corporation (“the Unocal Pipeline Corp.”), to hold Unocal’s
28% interest in the Gas Transportation Company half of the Project.3 Myanmar Oil and a Thai government entity, the Petroleum Authority of
Thailand Exploration and Production, also acquired interests in the
Project. Total Myanmar was appointed Operator of the Gas Production
Joint Venture and the Gas Transportation Company. As the Operator, Total
Myanmar was responsible, inter alia, for “determin[ing]
. . . the selection of . . . employees [and] the hours of work and the
compensation to be paid to all . . . employees” in connection with
the Project.
B.
Unocal’s Knowledge that the Myanmar Military Was Providing Security
and Other Services for the Project.
It
is undisputed that the Myanmar Military provided security and other
services for the Project, and that Unocal knew about this. The pipeline
was to run through Myanmar’s rural Tenasserim region. The Myanmar
Military increased its presence in the pipeline region to provide security
and other services for the Project.4 A
Unocal memorandum documenting Unocal’s meetings with Total on March
1 and 2, 1995 reflects Unocal’s understanding that “[f]our
battalions of 600 men each will protect the [pipeline] corridor”
and “[f]ifty soldiers will be assigned to guard each survey team.”
A former soldier in one of these battalions testified at his deposition
that his battalion had been formed in 1996 specifically for this purpose.
In addition, the Military built helipads and cleared roads along the
proposed pipeline route for the benefit of the Project.
There
is also evidence sufficient to raise a genuine issue of material fact
whether the Project hired the Myanmar Military, through Myanmar
Oil, to provide these services, and whether Unocal knew about this.
A Production Sharing Contract, entered into by Total Myanmar and Myanmar
Oil before Unocal acquired an interest in the Project, provided that
“[Myanmar Oil] shall . . . supply[ ] or mak[e] available . . .
security protection . . . as may be requested by [Total Myanmar and
its assigns],” such as Unocal. Unocal was aware of this agreement.
Thus, a May 10, 1995 Unocal “briefing document” states that
“[a]ccording to our contract, the government of Myanmar
is responsible for protecting the pipeline.” (Emphasis added.)
Similarly, in May 1995, a cable from the U.S. Embassy in Rangoon, Myanmar,
reported that Unocal On-Site Representative Joel Robinson (“Unocal
Representative Robinson” or “Robinson”) “stated
forthrightly that the companies have hired the Burmese military
to provide security for the project.” (Emphasis added.)
Unocal
disputes that the Project hired the Myanmar Military or, at the least,
that Unocal knew about this. For example, Unocal points out that the
Production Sharing Contract quoted in the previous paragraph covered
only the off-shore Gas Production Joint Venture but not the Gas Transportation
Company and the construction of the pipeline which gave rise to the
alleged human rights violations. Moreover, Unocal President John Imle
(“Unocal President Imle” or “Imle”) stated at his
deposition that he knew of “no . . . contractual obligation”
requiring the Myanmar Military to provide security for the pipeline
construction. Likewise, Unocal CEO Roger Beach (“Unocal CEO Beach”
or “Beach”) stated at his deposition that he also did not
know “whether or not Myanmar had a contractual obligation to provide
. . . security.” Beach further stated that he was not aware of
“any support whatsoever of the military[,] . . . either physical
or monetary.” These assertions by Unocal President Imle and Unocal
CEO Beach are called into question by a briefing book which Total prepared
for them on the occasion of their April 1996 visit to the Project. The
briefing book lists the “numbers of villagers” working as
“local helpers hired by battalions,” the monthly “amount
paid in Kyats” (the currency of Myanmar) to “Project Helpers,”
and the “amount in Kyats” expended by the Project on “food
rations (Army + Villages).”5
Furthermore,
there is evidence sufficient to raise a genuine issue of material fact
whether the Project directed the Myanmar Military in these activities,
at least to a degree, and whether Unocal was involved in this. In May
1995, a cable from the U.S. Embassy in Rangoon reported:
[Unocal
Representative] Robinson indicated . . . Total/Unocal uses [aerial
photos, precision surveys, and topography maps] to show the [Myanmar]
military where they need helipads built and facilities secured . .
. . Total’s security officials meet with military counterparts
to inform them of the next day’s activities so that soldiers
can ensure the area is secure and guard the work perimeter while the
survey team goes about its business.
A
November 8, 1995 document apparently authored by Total Myanmar stated
that “[e]ach working group has a security officer . . . to control
the army positions.” A January 1996 meeting document lists “daily
security coordination with the army” as a “working procedure.”
Similarly, the briefing book that Total prepared for Unocal President
Imle and Unocal CEO Beach on the occasion of their April 1996 visit
to the Project mentions that “daily meeting[s]” were “held
with the tactical commander” of the army. Moreover, on or about
August 29, 1996, Unocal (Singapore) Director of Information Carol Scott
(“Unocal Director of Information Scott” or “Scott”)
discussed with Unocal Media Contact and Spokesperson David Garcia (“Unocal
Spokesperson Garcia” or “Garcia”) via e-mail how Unocal
should publicly address the issue of the alleged movement of villages
by the Myanmar Military in connection with the pipeline. Scott cautioned
Garcia that “[b]y saying we influenced the army not to move a village,
you introduce the concept that they would do such a thing; whereas,
by saying that no villages have been moved, you skirt the issue of whether
it could happen or not.” (Emphasis added.) This e-mail is some
evidence that Unocal could influence the army not to commit human rights
violations, that the army might otherwise commit such violations, and
that Unocal knew this.
C.
Unocal’s Knowledge that the Myanmar Military Was Allegedly Committing
Human Rights Violations in Connection with the Project.
Plaintiffs
are villagers from Myanmar’s Tenasserim region, the rural area
through which the Project built the pipeline. Plaintiffs allege that
the Myanmar Military forced them, under threat of violence, to work
on and serve as porters for the Project. For instance, John Doe IX testified
that he was forced to build a helipad near the pipeline site in 1994
that was then used by Unocal and Total officials who visited the pipeline
during its planning stages. John Doe VII and John Roe X, described the
construction of helipads at Eindayaza and Po Pah Pta, both of which
were near the pipeline site, were used to ferry Total/Unocal executives
and materials to the construction site, and were constructed using the
forced labor of local villagers, including Plaintiffs. John Roes VIII
and IX, as well as John Does I, VIII and IX testified that they were
forced to work on building roads leading to the pipeline construction
area. Finally, John Does V and IX, testified that they were required
to serve as “pipeline porters” — workers who performed
menial tasks such as such as hauling materials and cleaning the army
camps for the soldiers guarding the pipeline construction.
Plaintiffs
also allege in furtherance of the forced labor program just described,
the Myanmar Military subjected them to acts of murder, rape, and torture.
For instance, Jane Doe I testified that after her husband, John Doe
I, attempted to escape the forced labor program, he was shot at by soldiers,
and in retaliation for his attempted escape, that she and her baby were
thrown into a fire, resulting in injuries to her and the death of the
child. Other witnesses described the summary execution of villagers
who refused to participate in the forced labor program, or who grew
too weak to work effectively. Several Plaintiffs testified that rapes
occurred as part of the forced labor program. For instance, both Jane
Does II and III testified that while conscripted to work on pipeline-related
construction projects, they were raped at knife-point by Myanmar soldiers
who were members of a battalion that was supervising the work. Plaintiffs
finally allege that Unocal’s conduct gives rise to liability for
these abuses.
Part
2
1.
Judge Paez initially authored the orders granting in part and denying
in part Defendants’ Motions to Dismiss. See Doe I v. Unocal Corp.,
963 F. Supp. 880 (C.D. Cal. 1997); Nat’l Coalition Gov’t of
the Union of Burma v. Unocal, Inc., 176 F.R.D. 329 (C.D. Cal. 1997).
Judge Lew later authored the order granting Defendants’ consolidated
Motions for Summary Judgment. See Doe I v. Unocal Corp., 110 F. Supp.
2d 1294 (C.D. Cal. 2000).
2.
The Unocal Offshore Co. was originally owned by the Unocal International
Corporation, a Delaware corporation and wholly-owned subsidiary of the
Union Oil Company of California. In 1999, ownership of the Unocal Offshore
Co. was transferred to Unocal Global Ventures, Ltd., a Bermuda corporation
and wholly owned subsidiary of the Unocal International Corporation,
“to achieve tax and cash management efficiencies.”
3.
The Unocal Pipeline Corp. was also originally owned by the Unocal International
Corporation. In 1998, ownership of the Unocal Pipeline Corp. was transferred
to Unocal Global Ventures, Ltd.
4.
Although anti-government rebels were active elsewhere in Myanmar, the
record indicates that there was in fact little to no rebel activity
in the region where the pipeline construction occurred, and that the
center of the Myanmar civil war was 150-200 miles distant from the pipeline
project.
5.
Moreover, in March 1996, a cable from the U.S. Embassy in Rangoon reflects
the Embassy’s understanding that “the consortium building
the pipeline pays the Burmese military a hard-currency fee for providing
security.”
